Second (of five) in ‘Sense’ posts (Listening, from last week) on how litigation unfolds, according to our five senses.
“Looking but not seeing is the hearing but not understanding of the eye.” Mokokona Mokhonoana
I’ve had the privilege to work with some experts at the top of their fields. But I’ve never been more impressed than I was when I saw a machine magically reveal unseen evidence right before my eyes. They say that ‘seeing is believing’ – and that is certainly true.
In Miami, there were two forensic document examiners who shared an ESDA machine. “ESDA” stands for Electrostatic detection apparatus, a machine that displays indentations from writing on paper without damaging the document. Forensic document examiners test original paper documents, like medical records (before they became electronic). Typically, I would have document experts examine the original paper and ink experts test the original ink by taking samples. Original paper has a story to tell that can’t be told by the naked eye. Ink is a different story – the manufacturers of ink ‘tag’ ink with identifiers that include the year the ink was made and sold. The revealed evidence can shed a lot of light on the document and its veracity.
The very first time I hired this work to be done, I had a feeling I was on the right track. So I went to see the work done. The expert placed each page of the original medical record across a bronze plate, then delicately placed a thin film over it. The expert then waved a corona (a highly charged wire) over the film, giving it an electrostatic charge. The areas in which the paper is indented by writing produced the greatest charge. Once the corona passed over the film, the expert tilted the bronze plate passing toner powder (with small glass beads) over the page. The toner adds to the areas of greatest charge, revealing the indentations on the page to even the untrained eye. The invisible indentations appeared as writing which we then compared to the rest of the original paper record, looking for things that don’t match (which may be missing because they were removed or changed/altered).
“Perception is strong and sight weak. In strategy, it is important to see distant things as if they were close and to take a distanced view of close things.”
Miyamoto Mushasi
After poring over the records for an hour or two, we found unique markings on a page that otherwise matched the original written records. When we lined these markings up, I can still remember the feeling when the “smoking gun” revealed itself on the critical page and at the critical place on the page – the key note had been removed when the page had been rewritten to make it look innocuous.
This process is expensive and is becoming outmoded due to the prevalence of electronic medical records – which present their own challenges in terms of forensic evaluation. But that is a story for another day. The tools your lawyer needs remain the same: a sense of what and how to investigate in your records; a willingness to invest the time and money necessary to investigate properly; and, the experience and skill set to know what to do with the results.
See our Companion Daily Post.
