Thursday, October 8, 2009

Why it is a always a good idea to take a picture

Yesterday in class we discussed the concept of evidence as it relates to torts cases. As part of that discussion we talked about the "banana peel cases" and the notion that the condition of the banana may prove how long it was lying on the ground. Sound familiar? Well, in any case, at some point in this discussion I usually ask something along the lines of "what evidence can you bring to prove how long the banana was there?" and someone always says "the banana peel" (which is the right way to think about it)... but then I remind them that the trial is happening years later and "the" peel is long gone. So I mention the importance of preserving the evidence, taking photos, making sure they are time stamped etc. Now, at 5 in the morning when I am sitting here with nothing better to do than catching up on my reading I just saw this new case out of the court of appeals of the 7th circuit decided about a week ago called Aguirre v. Turner Construction Company where judge Posner has this to say to the lawyers who litigated the case: "A difficulty in understanding the evidence has arisen, however, from the lawyers’ regrettable failure to include in the record a diagram or photographs (other than some unreadable copies of photographs) that would have given us judges an intelligible picture of the scene and circumstances of the accident. A duplicate of the scaffold was exhibited at trial, but no photo or drawing was made of it. We have pointed out that when the appearance of something is material to a case—it could be a copyrighted picture, a trademark, or, as in this case, the scene and instrumentality of an accident—it is better to show us a picture than to try to describe the object or scene just in words. . . . The lawyers at argument did their best with words and hand gestures to depict the scene of the accident for us, and we think we get it, but they would have done better to honor the adage that a picture is worth a thousand words." Enough said. Your cellphone has a camera. Use it. ps: the case is also about the concept of res ipsa loquitur, which we will discuss in class next week... so, more about the case later...

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