I love crime movies and television shows. Particularly the subset of (as described years ago at Scarecrow Video): Gangsters and Gangstas.
As part of the formula, particularly in procedurals, there is always a smoking gun—always something that can be found that provides a definitive answer about whodunnit.
Real life is not like movies or television. Some crimes are, to quote from the movie Spinal Tap, “best left unsolved.”
But clients are (often) heavily invested in the idea that investigation will not only provide definitive answers but also provide the definitive answers they want.
I have a couple of reactions:
Experiential. Investigation is important to a point. But there’s a fine line between productive and destructive. If you go to ends of the earth to find evidence that pins blame on the defendant and find nothing, you’ve basically proven that the defendant didn’t do it.
Handcuffing our Advocacy. Clients hire us because we’re persuasive. Advocacy flourishes when there’s uncertainty. Certainty limits what we can accomplish.
We hoped that video would revolutionize the way we dealt with liability. In some senses it has. But not in a good way.
More often than not video (and other evidence like images from Google Earth) demonstrates that what clients believe is not consistent with the objective evidence.
We can make a lot of good arguments based on client testimony. It’s hard to make those same arguments when the evidence is stacked against us.
There’s this expression: If you’re digging yourself into a hole the first thing you should do is put down the shovel.
The same thing applies to over-investigating cases. When you realize that the investigation is turning up or likely to turn up evidence that helps the other side it’s time to stop.