Scenes Techniques #3 - Evidence - find the evidence

Don't complete the scene until you identify all records and witnesses

In the previous episodes of Scenes Technique, we thought like film directors. However, we’re litigators, not film directors. It’s time to act like what we are. Right from when we first took on the case, we have looked for possible evidence, assessed its weight, and decided how to present it. 

Now let’s apply our litigation skills to what we have compiled as firm directors. Let’s focus on the evidence.

Evidence comes from two, maybe three sources. The first is witnesses. People. With all their strengths and foibles. They make the practice of litigation such a crapshoot. The second is exhibits, usually records. Documents and things that have some relevance to what is in issue in the case. The ‘maybe three’ component is records of what people said. These include transcripts (what people actually said) and records that identify what the recorder will say people actually said. Hospital records, police reports, and even news articles quoting people. This episode is not about records, but consider that such records may exist, may be persuasive and may also be subject to attack as inadmissible, inaccurate or otherwise unreliable.

 Yes, we have a formula for this. You have already sussed it out, right?

For each scene under consideration, specifically, look for potential witnesses and potential exhibits (usually records). Remember that we are still not looking at how reliable and available they might be or how advisable it is to use these witnesses and records. Just be aware that they exist and may be important.

·        Potential witnesses: Who has something to say about the scene? That ‘witness’ may have been involved directly but may have heard of it from another participant (or both).

·        Potential exhibits: What records or other things may relate to the scene? Consider that such a relationship might be after the fact (such as a report), before the fact (such as a brief consulted by participants), or during the fact (such as notes taken during the scene).

A thorough litigator always looks for evidence – both witnesses and exhibits. This formula encourages the litigator to think about evidence early and often. Let’s return to the Goldilocks fairy tale. Consider the scenes we identified in Episode #2.

1.            9-year-old Goldilocks does, indeed, have two parents.

a.      Possible witnesses: The parents and other family members, teachers, clergy, and doctors.

b.     Possible exhibits: Vital Statistics records, family doctor’s record.

2.            She lives on a farm on the outskirts of the forest.

a.      Possible witnesses: Neighbours, teachers, librarian, municipal and police officers.

b.     Possible exhibits: Deed/lease to farm, school records, library card.

3.            Her parents instructed her never to leave the yard without one of them by her side.

a.      Possible witnesses: teachers, babysitters, neighbours, municipal officials or clergy.

b.     Possible exhibits: police records (missing person reports) and family correspondence.

True, most possible witnesses and exhibits are long shots or even silly. The idea is that you should ask questions, think outside the box, and track down possible evidence wherever it is. Common sources for relevant records are train/bus schedules, newspaper archives, weather department records, family doctor records, medical insurance records, tax records, and school records. 

For witnesses, consider that often witnesses and records prove something positive (an event happened) and often prove or suggest something negative (an event did not happen). In the Hound of the Baskervilles (spoiler alert!) Sherlock Holmes derived his major clue from the hound not baying in the night. The absence of a hospital record suggests that the victim did not go to that hospital.

In our next episode, we will start to consider how the theme you chose (Case Analysis #4) informs your scene selection.

Exercise: examine several of the scenes you created in the previous exercises. Record all the possible relevant witnesses and exhibits that might exist.

No handbook is written about this technique, although one is under consideration.