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From Juicy Grapes To Wrinkled Raisins – Solutions For 4 Types Of Facts That Can Lead To Sticky Situations
by Larry Carson
You make an assumption going in that the facts will always be there. Alive with freshness and ready to pick whenever you’re ready. So no need to worry about the facts right now because there are so many other things to do. Put them low on the priority list and get to them when you have time.
Bad move.
Just like everything else in life, facts have a shelf life. But the problem is, they don’t come with a printed expiration date. A ticking time bomb with no visible clock.
Witnesses:
They begin life as bystanders. Right place at the right time, or wrong place at the wrong time depending on their tolerance for the legal system. From the very beginning their memories will start to fade. With time, they may also start to question just how much they want to be “involved” in the world of litigation. There may also be community pressures if their testimony goes against the thinking in their town and among their friends. Then there’s the problem of identifying and locating them if the fact investigation is delayed. What seemed so clear at the beginning may be reduced to worthless testimony at the crucial time it’s needed.
Solution: Find them now, make friends (admire their velvet Elvis painting if you have to), and get their testimony on the record.
Social Media:
Everyone thinks that nothing goes away once it’s posted to the internet. That’s not an absolute. Social media is deleted, accounts are changed from public to private, once popular platforms go dormant. In the world of instant data the reverse is also true- instant deletions. Social media sites must be scoured, profiles found, analyzed and preserved in a timely manner and with trial presentation in mind. And once found, continuous monitoring must be initiated.
Solution: Similiar to Witnesses, but you don’t have to worry about the painting appraisal. Just capture and properly preserve the postings.
Evidence:
Evidence gets lost. It corrodes. It hides. It gets put under wraps by opposing counsel. A lot of things happen to evidence except for two things: it doesn’t remain the same and it doesn’t get better with age.
Solution: The point is get it now and get it secured.
Public Records:
Courts:
All court records are not the same. It all depends on the court, the clerks and the judges. What is public in one court may be private in another. And, no one in the clerk’s office really cares that you can quote the Freedom of Information Act word for word without taking a breath. They’ll decide what’s public and what’s not. Court records that were once public and readily available can be (to name a few actual instances): sealed long before your request or even while you anxiously await your copies, lost, redacted beyond recognition, relocated to protected archives, deleted or “checked out” by opposing counsel who has no intention of ever bringing them back. And, that’s just a few ways that once open and available court records morph into less desirable forms. More are being invented every day.
Other Records:
Other public records have less structure, and include (among other things) employment, financial, environmental, news and genealogy as general areas of interest. Each has some information available through internet searching, and others require proprietary database subscriptions. And, putting boots on the ground may well lead you to honeypots that Google searches could never imagine.
Solution: It may go against the grain, but try being nice. A box of donuts works wonders. Getting into an argument also works wonders, but at the other end of the spectrum. An argument with a records clerk will at best get you a “no” answer, and at the worst get you an overnight stay in the local jail where Aunt Bee will not be bringing your supper. Public records acquisition can be a long and tedious endeavor. Be prepared for the long haul.
