The Daily


The fourth in a series about the Senses in litigation.

The sense of touch is varied and wondrous. Through touch, we appreciate temperature, texture of surface, shape, hardness or softness, elasticity and even weight. Touch is the one sense used from the beginning to the end of a personal injury case. Investigating cases I’ve sifted through roadway debris, patrolled junk and salvage yards, touched running engines, handled pathology slides, crawled up inside hydraulics, trucks and burned out cars – just to get a better sense of what happened to cause some serious harm.

For the same reasons, touch is also critical at trial. In any case involving physical evidence, there is no way to more effectively convey evidence to a jury than by showing them the object and letting them touch it (if the Court allows).

In between the investigation and the trial, where physical evidence is present there are always inspections. The parties (alone or together) will meet through their lawyers or experts wherever the evidence is located and take a predetermined time to inspect, handle, photograph and otherwise record whatever it is. Sometimes, with permission of the Court, destructive tests are authorized and the evidence can be subjected to cutting, slicing, biopsy or testing under the supervision of appropriate experts.

I attended one of these inspections in an enormous hanger at an executive airport in Vero. The hanger stored every imaginable type of aircraft – all severely damaged in crashes and all carrying memories in the form of evidence inside. Ghosts and the residue of NTSB investigations loitered in every inch of the place. There were helicopters, jets, prop planes and gliders. There was a water landing from the Bahamas represented. A news helicopter caught in high tension wires. The salvage and rescue operators walked around telling their war stories to a fresh new audience. There were huge wooden crates stacked to the rafters filled with every imaginable engine and aircraft part. Numbered and labeled props and blades littered one corner. Bloody and broken seats were strewn throughout all of the cabins laying in piles around the hanger.

We waited for hours while the dollies and cranes lifted and lowered heavy crates, then we sifted through the items for what we’d come to see – picking through to find pre-determined items and putting them aside. Hoists and pulleys lifted and moved the heavier parts, dangling over our heads and then slowly lowered to the floor. Chain of custody being important, the boxes had not been opened since the Feds put the evidence in them and closed them up. Once the plane engine was exposed, we carefully went through the parts – guided by experts – separating what was important from what was not. After hours of work, we had assembled the engine, blocks, cylinders, wires, leads and as many other relevant small parts as we could find on a large table. Once all this was done, we were able to walk around the table, talk about the pieces of the wreckage and what the experts found significant about the story it told. For the first time, I was able to pick up and touch the evidence in the context of what it meant – guided by experts in the destroyed machine I was looking at.

It is hard to say that you understand a product liability or aircraft case unless you’ve been through an expert guided process like this.