Save the Evidence - Hurtado & Associates

By R.Bruce Wright, CPCU

I recently had the chance to attend a presentation made by the senior consulting defense attorney to the Hurtado & Associates Power Program, Mark Barber of Hall Booth Smith & Slover, located in Atlanta, GA. Mr. Barber was doing some training for claims professionals involved in the program when one of the attendees asked him a question. The question was, “What should we tell our contacts at a power system to do after the fact, that is, after an incident has occurred, that would help make a legal defense effort more successful?” Pretty good question, don’t you think? I bet you want to know the same thing yourself, so here’s what Mark responded.

Attorney Barber said the single most useful advice he could give is “Save the evidence!” He acknowledged that many of the important steps that lead to a successful defense come before things go wrong-- things such as inspections, documentation, warnings etc.-- but he said that once an event has occurred it becomes crucial to keep any physical evidence. Wire, poles, tools, equipment, or any other items involved in the incident should be identified, collected, protected, and retained, segregated from other used bits that may be in storage, so it is clear that they have been preserved in as near as possible to the condition in which they were found after an incident.

The science of accident reconstruction has advanced considerably over the past decade and it might surprise people to learn the depth of detail that can be obtained through the analysis of burn marks on wire, or the internal evidence of a failed transformer, or some other piece of equipment. Scientific analysis can identify the most miniscule remnants of hair, skin, metal, fiberglass or any other material that may have come in contact with a power line. The evidence recovered in this fashion can establish facts about a line contact which may exonerate you or reduce your culpability. In some cases they may confirm liability and let the claims department immediately begin negotiations, which is to everyone’s benefit. Facts that can be provided by physical evidence are all too often not available by the time a case winds its way through the legal system, which makes it even more important for you to have a plan for collecting, protecting, and keeping any such remnants in the wake of an incident.

To ensure that everyone knows what to do and how to do it, you should consider formalizing a policy to retain and protect any physical evidence available after an incident. The policy should assign this responsibility to specific members of management, provide guidelines on the collection and protection of the evidence, indicate the source of appropriate storage bags and wrappers, require the labeling of retained items with the date of collection and the name of the person who secured them, and provide for a secure spot for such evidence to be kept.