The Importance of the Product Defense Attorney at the Fire Scene: Part Four


Part 4 – Attendance at the Fire Scene –Post Scene Exam Defense Planning

The attendance of a product defense attorney at the fire scene can greatly assist in the defense of a fire loss. Of course, that benefit is only fully realized when an attorney is sufficiently prepared and takes a proactive role when at the scene. If a client chooses to send an attorney to a fire scene, the attorney should make the most of that opportunity and gather as much information as possible to assist in the case. This series of blog posts will expound on the importance of preparation prior to a scene exam, attendance at the scene exam, and post scene exam activities.

You have now completed your investigation of the fire scene. Before you actually leave the scene, see if you can obtain a copy of the evidence being retained. Run that list by your expert to make sure that there is no additional evidence that should be retained. Collect everything that could possibly be relevant to a future defense. Make sure your cause and origin expert has photographs of every room. These photographs can come in handy when defending against an inflated claim of damages. Confirm that your expert has photographs for everything he needs in the event he needs to prepare a report. However, you should direct your expert not to prepare a report at this time. These reports would be only preliminary at this point in time. Further, if the matter is at the claim stage, the reports could potentially be discoverable in litigation.

Once the exam is complete, you as the attorney can generate a report that will always be protected by the work product doctrine and attorney client privilege. Put together a comprehensive report of your experts’ preliminary opinions. The client relies on you to provide them with all the information so they can assess their exposure early on in the matter. The client will look to the attorney to provide information regarding causation and provide them with alternative sources of the fire. Be sure to advise your client of all possible defenses – Was the product being misused? Was the product altered after it left your client’s control? Was the product being used contrary to the warnings? The more information you can provide your client early on in the defense, the better. Your report will help in developing the defense strategy and assist in bringing the matter to an appropriate resolution.

Unless the scene exam went really well for you and your client, the attendance at the fire scene is only the beginning of your defense on a matter. Likely, an evidence exam will be scheduled. When a sufficient amount of time has passed after the fire, you should request all damage documentation from the claimant or his/her insurance company. Ideally, the matter will be resolved prior to the initiation of litigation, however, if it is not, you have given yourself a significant advantage in the future defense of the matter by thoroughly examining the fire scene. Your client, and your future self, will appreciate it.



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