ASSOCIATION OF TRIAL LAWYERS
\nANNUAL CONVENTION
\nINADEQUATE SECURITY LITIGATION GROUP
\nBOSTON, MASSACHUSETTS – JULY 29, 1996<\/p>\n
Steven C. Laird, TX Interest in personal security has, in recent years, increased at the same rate as the rise in crime. As the criminals seek to gain the upper hand, it is the duty of land owners to recognize this increase and act accordingly in seeking, and more importantly obtaining, proper security for those on their property. Unfortunately, many land owners have not heeded even the most blatant of warnings, and therefore, due in no small part to their own failings, have allowed criminal the upper hand in assaults on their property. This paper addresses the concerns of attorneys in their determination as to whether they should, and can effectively, represent a client – or potential client – in a negligent security case.<\/p>\n I. INITIAL SCREENING<\/strong><\/p>\n A. Prospective Client<\/p>\n Perhaps no other cause of action speaks so directly to the need for credibility of a client and other witnesses than in a security case. In addition, in perhaps no other area of personal injury law has one’s client generally gone through so many credibility checks prior to ever walking in your door. In many instances, the prospective client has already been administered a polygraph test, rape kit, intense questioning – possibly even testified in the very matter beforehand. Each of these can be very helpful in an attorney making a determination as to whether to handle a case.<\/p>\n 1. Liability<\/p>\n Many times, the liability portion of a negligent security case is very much like trying the criminal case all over again; except without many of the protections afforded to the victim in a criminal trial including the protections afforded under Fed. R. Evid. 412(b)(1) (Discussed more thoroughly below). Therefore, it is incumbent on you to delve into this area to determine whether there will be any pitfalls as the case proceeds. Likewise, even in a non-sex related assault, it is important to determine what your client knew of the attacker and the area of the attack, as these issues may come into play to reduce liability on the defendants and to raise contributory liability as to your client.<\/p>\n Another area to cover with your client is why they were on the property. If the prospective client was assaulted in her own building or complex there may be additional grounds for contractual liability – good for getting attorney fees. Find out how your client came about leasing her property, i.e. an apartment locator, a supermarket hand-out, advertizement, ect. Locate these sources to determine whether security or a crime-free environment were used as an inducement to rent.<\/p>\n 2. Damages<\/p>\n This discussion turns on two issues. The first is how your client will be perceived by the jury and the second is the types of damages you may be looking to prove in a typical security case.<\/p>\n a. Your Client<\/p>\n One of the first questions to be considered is how your prospective client will be liked, or repulsed, by the jury. Most security cases provide a virtually unlimited source of damages for pain and suffering and mental anguish, together with punitive damages, but are limited regarding liquidated damages. To that end, your client must be able to draw and hold the sympathy of a jury. To that end, a lack of a criminal history is important. Likewise, in the matter of a sexual assault, a lack of promiscuity is necessary, for while past sexual history has limited history in a criminal case, the same is not true under the civil rules of procedure where past sexual history, and consent, are admissible.<\/p>\n b. Types of damages<\/p>\n The second issue is what actions your client has taken since the incident. The most easily quantified is when the client immediately begins some type of therapy or counseling. Of more difficult proof is the client who goes into a shell after an attack. In this instance, interviews with those close to the client may be necessary to determine the exact state of injuries. These may include an inability to leave home, take care of children or others, inability to work or get to work, loss of sleep or concentration, or other physical manifestations of psychological problems arising out of the incident made the basis for the claim. Great care is necessary in these situations to get your client assistance while avoiding the lingering shadow of manufacturing a case when none exists.<\/p>\n Medical, psychological and wage loss liquidated damages are fairly easy to determine and are more properly addressed in a more general discussion of damages. This paper will address two of the more recent theories for damage recovery which, due to changes in punitive damage limits, will be of far greater importance, especially in post-tort reform jurisdictions as more emphasis is placed on pain and suffering and mental anguish damages.<\/p>\n 1. Post Traumatic Stress Disorder<\/p>\n Post Traumatic Stress Disorder (PTSD) was originally thought to be a byproduct of Vietnam veterans and was discounted for any other traumas in life. This has changed in the past few years as reports have been more thoroughly documented regarding these same manifestations from other traumatic experiences.<\/p>\n PTSD manifests itself in its victims by a constant reexperience of the event giving rise to the trauma. The experiences range from bad dreams through actual physical manifestations including stress, depression, hallucination, difficulty in sleeping, changes in character and emotions, difficulty concentrating as well as other physical manifestations.<\/p>\n Tests are now available for the purpose of diagnosis and treatment of those suffering from PTSD. The most prominent of these tests is the Structured Clinical Interview Diagnostic which has been quantified on a scale (the Clinician-administered PTSD Scale) for the purpose of diagnosis and treatment. Other tests for evaluating PTSD include the Impact of Events Scales, the SCL-90R, MMPI Subscale for PTSD and the Penn Inventory. needless to say, a psychologist would be necessary to administer these tests as well as interpret the results for the jury.<\/p>\n 2. Rape Trauma Syndrome<\/p>\n Studies have shown that a significant number of victims of rapes suffer substantially similar immediate and long term effects of rape, called the Rape Trauma Syndrome (RTS). As the reaction to and effects of rape are of a lifetime nature, the syndrome has been found to be cyclical, not linear.<\/p>\n RTS is characterized by two phases: acute and reorganization. These phases manifest themselves in increased anxiety, crying and yelling, fear, shame, humiliation, guilt, anger and revenge as well as physical manifestations such as soreness, headaches, stomachaches, gynecological discomfort or ideation.<\/p>\n In either a case of RTS or PTSD, many of the feelings are the same. For the purpose of litigation, one of the most important to deal with is that many times your client, early on, will almost feel a sense of relief that they got out alive; however, there are a litany of feelings that soon break the surface and transcend that feeling. It is therefore important that they be addressed by a psychologist or other counselor throughout your period of representation so that these first feelings do not taint the case in chief, to wit: support for additional problems after the defendant’s attorney asks your client whether she told the police just after the incident that she was just happy to be alive.<\/p>\n B. Criminal History<\/p>\n 1. History of the Site<\/p>\n The most important aspect in the development of a negligent security claim is to establish foreseeability. No matter how heinous the crime was which forms the basis of the claim, there will be no liability without establishing that there was a foreseeable risk of harm from criminal acts of third persons.<\/p>\n The first stop therefore should be at the police department of the city in which the incident occurred. Most police departments will be able to pull up call sheets to a specific address or area. From that, you should be able to get a clearer idea of what the owner of the property should have anticipated and acted to protect regarding foreseeable criminal risks. Just as important as the number of incidents are the type of incidents and when they occur. For example, you get a report on the “grid” of the area which indicates that there are a large number of calls related to domestic disturbances and complaints of loud music and noise. Conversely, there are no complaints of assault or similar crimes. Your case is a sexual assault. The prior criminal calls, would probably not be such as to put an owner on notice sufficient to establish foreseeability.<\/p>\n Likewise, the time of the calls is relevant. If most police calls to the area occur at night and very few occur during the morning, there is less of a need for security in the morning than at night. Furthermore, there is reduced support for foreseeability in such a circumstance.<\/p>\n As second area to inspect is the local court dockets to determine how many other suits have been filed against the owner for negligent breaches of the duty to provide adequate security. Again, past suits provide excellent ammunition in establishing foreseeability.<\/p>\n Finally, have an investigator or expert actually go out to the area to determine whether other tenants of the owner have experienced criminal problems and whether any such potential concerns were brought to the attention of the owners. This may also be a good time to determine exactly what control various ownership or management entities had over the property, to wit: Did the owner ever come to the property or was that left to a management company? Did the management company or owner have an on-site or off-site office? Did the owner or others ever inspect the property; did anyone ever see them at all?<\/p>\n 2. History of the Assailant<\/p>\n Obtaining a history of the assailant, like that off the area, can also prove helpful in establishing foreseeability. First, find out about the known criminal history of the assailant. This can generally be accomplished by examining court records – many of which are now on computer in even small counties. Another way is by talking with the local district attorney who will pull his information from the entire country and many times would be happy to share this information with you.<\/p>\n Next, go to the assailant’s friend and neighbors to determine what his past is. Again, you are looking for information which the property owner knew or should have known about. Needless to say, the closer the assailant is to the property owner, the more information should be known by the owner. This is why it is especially important to obtain prior criminal records and history when the assailant is an employed or otherwise shares a special relationship with the owner.<\/p>\n C. Site Inspection<\/p>\n Once you have met with your client and feel somewhat satisfied with the initial values of your case, go to the scene of the incident and make yourself familiar with the area. If you are unable to get to the scene in a timely fashion, get someone else to go to the scene of the incident. In many of these types of cases, timing is all-important.<\/p>\n 1. Photographs<\/p>\n Take photographs — lots of photographs. At the end of a case, after spending many thousands to build up your case, you will thank yourself for spending the $10.00 for buying and developing a roll of 24 exposures.<\/p>\n Photographs are important for many reasons. First, in any situation where premises defects are a potential source of the injury, the property owner may be quick to have fixed the defect. While it may take years for a hedge to grow to the point where it becomes a dangerous obstruction, it only takes a few minutes to remove it – along with a valuable piece of evidence. The same goes for unlit areas, defective or non-existent security devices, or any other potential causes of failed security.<\/p>\n Second, photographs will assist experts who come into the case at some later date. While many experts will eventually travel to the scene of the incident and take their own photos, the photographs taken closest to the time of the incident will be of greatest assistance. This again speaks to the need for taking a lot of photos; the desire to avoid having your expert admit in testimony that he wished he could have seen the scene at such and such an angle or distance.<\/p>\n Third, photographs will provide you greater assistance in allowing the jury to actually understand the scene of the incident at the time and place the action actually occurred. However, it must be remembered that photographs introduced into evidence must still meet the relevance test – probative value outweighs unfair prejudice. Therefore, there must be a substantial similarity between the photographs and the scene. Therefore, if the lighting is important, it may be advisable to take along a professional photographer who can take photos which will depict the light more closely to the lighting characteristics at the scene of the incident, or risk the court disallowing any evidentiary photographs at the scene.<\/p>\n As foreseeability is such an important part of any negligent security case, it is would be a good idea to take pictures of the area surrounding the business or complex. Look for things like abandoned buildings, abandoned cars, heavily used bus stops, places where people are just congregating, graffiti, broken doors and windows, ect. Again, one old adage is more important than any other to a jury – A picture paints a thousand words.<\/p>\n 2. Floor Plans and Layouts<\/p>\n Rare is the case where blueprints are going to be available or necessary. But again, documenting the scene may be the only way for an expert of a jury to later get the full flavor of the scene of the incident.<\/p>\n Come to the scene ready to measure and draw. Bring a good tape measure to record any distances which may even remotely have something to do with the case. Asking yourself a hundred times why you took a measurement beats one trip back to the scene because something was omitted. Measure and draw as much of the layout as possible, including halls, walkways, stairs, rooms, light fixtures (including what wattage bulbs there are and the light’s distance from the ground), locks and anything else which may hold some relevance either to you or any expert who may rely on the diagrams. Again, if lighting is a concern, bring a light meter to testing the lighting conditions at various locations.<\/p>\n If possible, and the same is relevant, attempt to determine what type of security personnel exist on the property. If the security is of the drive-through type, attempt to find out whether there is a pattern to the time or direction of patrols; anything which would have given a criminal assistance in his crime. This also applies to security on foot. Look for other security devices on site, such as fences, security lights, emergency phones, ect. Look for signs in the area regarding neighborhood crime watches or warnings. While these indicate that the owner may have thought to do something about criminal activity, more importantly, it establishes that the owner was aware of such nefarious activity.<\/p>\n 3. Watch the Property<\/p>\n Many attorneys do not have the ability to travel to the property during the day for a quick inspection, let alone a surveillance inspection at the time the assault occurred. Furthermore, an attorney driving onto certain properties in a nice late model vehicle may make much of the “flavor” of the community run into hiding. However, if there is any opportunity to do so, try to have someone watch the property over an extended period of time. Not only may this provide further proof of the criminal element for the establishment of foreseeability, but it may also support evidence of security neglect, to wit: many complexes contend that they have guards who either walk the property or drive through the property in order to establish the presence of security. It is vitally important to establish whether such security exists in fantasy, on paper, or in fact. Furthermore, if there is, or is supposed to be a security presence, this may allow for the addition of the security company as another liable party.<\/p>\n D. Experts<\/p>\n With few exceptions, the necessity of an expert – at least one – in a negligent security case is a necessity. This section discusses both the timing and types of experts which may be of use prior to or during trial.<\/p>\n 1. Reasons to Retain an Expert<\/p>\n The purpose of employing an expert witness is three-fold. First, an expert should assist counsel in his own case, second, the expert should educate the jury, and third, the expert should be able to sway a jury. Therefore, the first question is, what does the practitioner know himself and why does he know it?<\/p>\n When an attorney first sits down with his client in his initial meeting, he should already be having a feeling that he understands or does not understand each element he will later have to prove to a jury. If he understands the concepts which will be necessary to make his case, it probably is not wise to rush out to other sources for help as the same can be done when issues are better formulated and strategies are being prepared for presentation to a jury; however, if the attorney is unsure of his client’s very position due to the technological aspects of his case, it is incumbent on the attorney to seek immediate<\/strong>help – even before agreeing to handle a case.<\/p>\n The second issue is how the expert assists at trial. An expert should not be used where a layperson could provide the same proof. In such a situation, the court will disallow such expert testimony and leave the jury to their own understandings. In Justice v. Carter, 972 F.2d 951 (8th Cir. 1992), the court quoted the advisory committee notes on Fed. R. Civ. P. which stated:<\/p>\n There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.<\/p>\n Id. at 957. Furthermore, some aspects of a case may be proven without the need of an expert even if such information is not readily apparent to the jury. Essentially, before placing an alleged expert before the jury, as yourself if he is necessary. Credibility will be lost both from the jury and your client (who paid for the expert) if your expert talks down to the jury or, worse, if the court disallows the expert’s testimony.<\/p>\n This leads to the third issue. Will the expert sway the jury and in what way. The value of an expert to sway a jury is discussed further below, but, suffice it to say, an expert can turn a jury off just as easily as move a jury toward your point of view. More so, an expert can put you into an excellent position or put you in a hole.<\/p>\n 2. What Type of Expert Do I Need?<\/p>\n Think about the type of case you have and go from there. Nowadays, there are experts on almost every issue imaginable; just remember, the key is still credibility. But that aside, you will almost certainly need a security expert.<\/p>\n a. Security Expert<\/p>\n The typical security expert comes from one of two sources: the public sector (police) or the private sector (security firm). Each has pluses and minuses. Unfortunately, the public seems to look at police with a jaded eye when it comes to their opinions of safety and security; however, they are less likely to look “paid off.” A security specialist may come off more polished, but that has its down side too as the expert may appear to be much of a hired gun. In either event, get the expert involved as soon as possible.<\/p>\n b. Other Potential Liability Experts<\/p>\n As noted above, experts can be found on virtually any issue. If relevant, look for experts on lighting, architecture, horticulture, safety, building design, pool design, the design and installation of security devices, ect.<\/p>\n c. Damages Experts<\/p>\n In a negligent security cause of action, the primary damage expert will generally be a psychologist or psychiatrist. If possible, the treating doctor will do just fine as they can testify most accurately on the condition and prognosis of the plaintiff. This does not, however, mean that if a treating doctor exists, they will suffice. As noted later in this paper, doctors have only recently been conducting advanced studies into the trauma associated with an attack of any kind, finding support in claims for damages for post traumatic stress disorder, rape trauma, and similar injuries to the psyche. En expert may be extremely helpful in providing insight into these claims in general, and the plaintiff’s plight in particular.<\/p>\n 3. Where to Find an Expert<\/p>\n If you have determined that an expert is necessary, the next question is where to find one. First, ask what you are attempting to prove. An expert need not have a degree to make an effective and qualified expert. Suggested sources are:<\/p>\n The Telephone Book – an obvious but generally overlooked source of information on experts;<\/p>\n Colleges and Universities – Take advantage of all resources around you. If there is an institution of higher learning in your area, contact the relevant departments. Most university staffs have a great deal of leeway in offering their services as experts and their position many times lends instant credibility to their testimony. Furthermore, if there is no expert who will be able to assist, universities provide the resources to determine where else to turn.<\/p>\n Your Client – Either your client himself may qualify as an attorney, or he may know of someone who will be able to assist in that capacity.<\/p>\n Industry\/Medical Literature – Most libraries have at least some books or magazines on the subject for which you seek assistance. Look at the authors of these works and the articles they have authored or edited. Again, many individuals who write in trade journals also provide expert services and their publications assist in their credibility. This may also provide an attorney an excellent opportunity to educate himself on the area at issue.<\/p>\n Attorney Literature – State and national bar journals as well as other publications directed at attorneys are loaded with advertisements for experts. But remember, testifying experts can be cross-examined as to how they were retained and advertising can compromise credibility.<\/p>\n Other Attorneys – Never be shy to ask for assistance from a colleague. They may have been in a similar situation or know where to send you.<\/p>\n Other Experts – Many times an expert used in the past will not be useful for a particular case, but may be invaluable in steering an attorney to the proper expert.<\/p>\n 4. Considerations In Retaining an Expert<\/p>\n In considering an expert, it is important to determine whether the individual will meet the three criteria as noted above – assist the attorney, educate the jury, sway the jury. There are several factors which should be considered in making the determination of an expert<\/p>\n 5. General Considerations<\/p>\n Regional Bias – Bringing in an expert from another part of the country needs to be weighed with the inevitable cross-examination as to why counsel had to leave the city\/state to hunt up an expert who will testify for him. While the jury may be impressed with credentials, they will also want answers as to why local professionals could not be used. Needless to say, the smaller the specialty or the greater the credentials, the lower opposing counsel’s arguments against the expert.<\/p>\n Professional Experts – They know what to say and when to say it; however, many professional witnesses lose credibility with the jury when they make their living selling their opinions; sometimes arguing ridiculous issues having little bearing on the case but further destroying credibility. An individual who is a practitioner rather than a witness will tend to lend credibility to his testimony; however, if using a professional witness becomes a necessity, the attorney should diffuse potential cross-examination by emphasizing the education, training experience and reputation of the witness. This emphasis should be carried out at strategic points throughout the testimony.<\/p>\n The Expert’s History – Does the expert testify primarily for plaintiffs, defendants, or for the side which he feels is correct. Furthermore, take care to examine the expert’s background regarding contrary opinions in other cases or in publications by the expert. Also confirm that the expert examines his cases on an individual basis as opposed to using form documents and form testimony.<\/p>\n The Expert’s Fees – This should be examined both for practicality as well as for the effect such fees will have on a jury. Also, be sure to have an understanding as to what the fees are for and how much extra things like testimony will run, travel costs, and costs for answering questions. It is also important to keep one’s client abreast as to expert’s fees as this may have a bearing on the value of the case in general.<\/p>\n The Expert’s Schedule – Can the expert be depended upon to timely provide the attorney with necessary information such as reports. Is the expert available to discuss the case and assist with pre-trial matters such as responding to discovery and generating a report. Most importantly, is the expert going to be available for depositions and trial.<\/p>\n Association With the Attorney – An expert with too close a tie to a particular attorney or law firm may cause credibility problems.<\/p>\n 6. Personal Considerations<\/p>\n Probably the most intangible aspect is how the expert will present to a jury. While an expert may be excellent in his field, and may be able to transmit his expertise to an attorney in a one-on-one situation, this does not translate automatically into a situation where the expert will be effective before a jury. If at all possible, meet with the expert face-to-face prior to his being retained, or, in the alternative, contact others who have used the expert in the past.<\/p>\n Upon meeting the expert, ask yourself whether the expert speaks and acts the part of an expert as the jury will perceive. Think of the courtroom as a theater and the expert as an actor, performing for the jury\/audience. A good performance can thrill a jury and lead them toward the facts and theories you promote; on the other hand, an expert who is too quite, whiny, monotone, argumentative, or otherwise unpleasant may repulse a jury and destroy the theories being presented. Also, investigate the possible expert – a worthy opponent surely will. Look for past problems (lost or suspended professional licenses for example) and inconsistencies or other potentially impeachable characteristics.<\/p>\n A standby or spare expert should be available in the event that the primary expert’s opinions change, his credibility is severely called into issue, or he is unavailable at a crucial time.<\/p>\n Upon determining who will be hired as an expert, an engagement letter should be sent, defining the role of the expert. This letter may be discovered, so it should not suggest a desired result or give facts. Furthermore, any information sent to the expert should leave the expert open to his own interpretation, not that of the attorney. To that end, do not send summaries of records or depositions as this will severely undermine the credibility of your expert. Also, indicate to the expert not to put down any of his opinions in writing until the same have been discussed with the attorney.<\/p>\n The attorney should advise all experts who may be testifying witnesses that their notes will very likely be seen by the opposition through discovery. The attorney should emphasize the importance of keeping notes that are clear and not subject to misinterpretation. The expert should expect that all of his notes will be read carefully by the opposition.<\/p>\n A final caveat: He who professes to know a little about a lot knows nothing about everything. Do not expect your security expert to be able to give you opinions about issues not in his area of expertise. Al he will do is lose credibility. This does not necessarily mean that an attorney needs to hire a different expert as to each part of his case. Remember, an expert is only allowed to testify as to those things outside of the knowledge of a layperson. Allow the jury to use the most important sense of all – common sense.<\/p>\n E. The Criminal Case<\/p>\n The first question to be asked to a prospective client is the present status of any pending criminal matter against the client’s attacker. A client’s response that there were no charges filed should signal an immediate warning that the client’s claim may be difficult to prove, e.g. “It was important enough for the plaintiff to file a suit for money damages, but not important enough to file criminal charges.” While not all attacks lead to criminal trials, no attack should ever not be reported. Remember, the key word again in credibility.<\/p>\n If your first meeting with a client precedes the criminal trial, take advantage of the unique opportunity this presents by going to the trial in order not only to hear the testimony presented, but to examine the credibility and demeanor of prospective civil trial witnesses, including your client. Talk with the prosecutor. Most prosecutors are overworked civil servants who would be more than appreciative of any helpful suggestions or insights you may have. In addition, many prosecutors will assist in obtaining some economic expenses by way of retribution to the victim or the victim’s insurance company. This can be invaluable later in the civil case.<\/p>\n A byproduct of a successful criminal case is a conviction which is admissable at the time of the civil trial. In addition, the transcript from the criminal trial may be admissable both for missing witnesses (the criminal in prison) as well as for impeachment.<\/p>\n 1. Tests<\/p>\n Again, there is a matter of credibility in determining the viability of a negligent security claim. The criminal case may provide the civil trial attorney with invaluable information both in determining whether to sign up the client as well as for the future of the case itself.<\/p>\n In almost every case of alleged rape, the police are instructed to take the alleged victim to a hospital so that a rape kit can be made. The nurses or doctors, generally under the supervision of the police, will conduce a thorough examination of a woman to determine whether there was intercourse, whether there were any forced acts, whether there was any violence involved, as well as obtaining semen, blood and pubic samples for later criminal actions. A byproduct of the rape kit is the nature of the examination itself – a pubic and\/or anal examination before one or several strangers. There are many more than a few rape crisis counselors – as well as emergency room employees, who could later testify as to the emotional trauma of such a degrading examination so soon after so traumatic an event as a sexual assault. If a rape kit was not accomplished, this may be a sign that the client did not timely report the crime or did not cooperate with the police, or other issues which may undermine the civil case.<\/p>\n A polygraph or lie detector examination may likewise have been conducted to determine the veracity not only of the criminal, but of the victim. If such a test was conducted, your prospective client should know the results of the test. Again, while the prosecutor does not have to disclose his file, good rapport with the State will go a long way toward obtaining invaluable information.<\/p>\n Generally, all witnesses to a criminal act will have given a statement very soon after the alleged event occurred – a plus to most civil actions where the first statements from witnesses do not come until many moths or years after the original incident giving rise the cause of action. These are obtainable through the persons who gave such statements or, again, though the friendly prosecutor.<\/p>\n In the unfortunate event that your client is the surviving beneficiary in a wrongful death action, it is almost a must that your obtain a coroner’s report. This is a public record and will generally be turned over without much trouble.<\/p>\n II. FED. R. EVID. 412<\/strong><\/p>\n The Federal Rules of Evidence provide for a great deal of protection of the victim’s sexual past in a criminal case. Specifically, in a criminal case, past sexual history is only admissible to shoe the source of semen, past sexual history with the accused, or evidence which would violate the constitutional rights of the accused. Fed. R. Evid. 412(b)(1).<\/p>\n In a civil cause of action, the admission of evidence of sexual history is placed in a weighing test much like that of Fed. R. Evid. 403 with a few differences. Fed. R. Evid. 412(b)(2)First, it is the burden of the proponent to demonstrate admissibility rather than the opponent being made to show an exclusion. Second, the probative value must substantially outweigh the specific dangers of admission. Finally, the rule adds potential additional harm to the victim into the mix. See Advisory Committee Notes to Fed. R. Evid. 412.<\/p>\n III. PRE-LITIGATION CHECKLIST<\/strong><\/p>\n Below is a proposed checklist to assist you in making the proper turns and twists in getting a negligent security case up to speed and ready for trial:<\/p>\n (I) Interview With Client (See Appendix A – New Client Information Form)<\/p>\n A) Incident details<\/p>\n B) Witnesses<\/p>\n C) Statements and admissions of defendants (criminal and civil)<\/p>\n D) Pre-incident information including foreseeability and prior contact with attacker<\/p>\n E) Law enforcement\/prosecutor contacts<\/p>\n F) Post-incident treatment (rape kit, other physical examinations, injuries, ect.)<\/p>\n G) Visit site with client if possible<\/p>\n (II) Interviews with others<\/p>\n A) Investigating officers<\/p>\n B) Crime scene personnel<\/p>\n C) Witnesses<\/p>\n D) Employees<\/p>\n E) Owners and operators<\/p>\n F) Prior victims<\/p>\n G) Other tenants<\/p>\n (III) Obtain documents<\/p>\n A) Police report<\/p>\n B) Prior police reports – police records check<\/p>\n C) Medical and psychiatric records<\/p>\n D) Coroner’s report<\/p>\n E) Prior suits – courthouse check<\/p>\n F) Newspaper and television reports<\/p>\n G) Rules and regulations of the property<\/p>\n H) Lease or other agreements<\/p>\n I) Relevant statutes<\/p>\n J) Prior criminal history of the area<\/p>\n (IV) Site investigation<\/p>\n A) Photograph everything<\/p>\n B) Diagram everything<\/p>\n 1) Access ways<\/p>\n 2) Doors and windows<\/p>\n 3) Light fixtures including wattage and height<\/p>\n C) Conduct tests<\/p>\n 1) Light meter<\/p>\n 2) Sound meter<\/p>\n 3) Visibility – especially from offices or security areas<\/p>\n (V) Hire experts<\/p>\n A) Types (not all-inclusive)<\/p>\n 1) Lighting<\/p>\n 2) Locksmith<\/p>\n 3) Security<\/p>\n 4) Safety<\/p>\n 5) Policy<\/p>\n 6) Architect<\/p>\n 7) Engineer<\/p>\n 8) Mechanical\/electrical<\/p>\n B) Timing – As soon as possible<\/p>\n (VI) Review the relevant law to incorporate into the facts<\/p>\n
\nThe author gratefully acknowledges the assistance of Lorin M. Subar for his contribution to this paper.<\/em><\/p>\n