June 7, 2017
With the advent of the camera phone, the ubiquitous device in everyone’s pocket, there is no longer an excuse for failing to document “things” for posterity. And such forethought from our clients can prove decisive in a legal battle.
Examples where photos are helpful
The best example of the value of real-time photos is in construction disputes. We find it is regular practice of owners, architects, engineers, contractors, and materialmen to take photos at each stage of the work completed, which helps to establish the quality of the work, the conformity of the work to the plans, and the stage of completion at a particular point in time, and perhaps document the development of defects in material or workmanship as they are installed. (This then, of course, helps to pinpoint the blame.) The forensic or retrospective value of photos at each stage of construction can be invaluable.
Another example of the value of photos is in commercial and residential landlord/tenant in disputes. In those disputes, the condition of the property as delivered to tenant or as surrendered to landlord is frequently contested. My sharper clients have taken the time to document the condition of the property both at the beginning and end of the relationship with their camera phone. Those photos can make a liar of a defendant (or plaintiff) and permit a party to establish his minimum elements of a case he is presenting.
The existence of photos also could be used in an automobile accident situation, a dispute over the quality of goods delivered or to prove a person was in a particular place at a point in time.
Another example for me personally is that I just hate to get parking tickets, yet many times those darned parking meter are malfunctioning. When this happens, I take a business card, note on it “out of order” and slip it into the “credit card slot” on the meter while my car is parked there. Before slipping the card into the slot, I take a picture of the meter (they all have identifying numbers on them now) and the “out of order” card.
Admissibility and use of photos
Photos are, of course, generally going to be admissible as evidence in a trial or in alternate dispute resolution. So often at trial, I hate to say, one party or the other is outright lying to the judge. A photo can clear up the inconsistency in statements pretty effectively. The judge or jury should be thrilled to have such (nearly) incontrovertible evidence versus deciding which party is lying.
Number of photos
The memory capacity for photos on your telephone is almost unlimited, and it takes mere seconds to snap several pictures. Think about thoroughly preserving the record for posterity (or trial). Make the time to take several (indeed dozens) of shots — narrow and wide angle, and from every perspective — to preserve the moment for later reference.
Get with the times. Use this incredibly effective tool to enhance your position in dispute resolution. Or, saying it differently, I get frustrated when a client could have made their case stronger simply by whipping out that phone and documenting and saving information for a later date. This is especially true when the client knows the matter is heading into litigation.