Selecting an Origin and Cause Expert

by Guy E. Burnette, Jr., Esquire

The selection of an origin and cause expert is another critical decision in the handling of an arson file. An inadequate or improper fire scene investigation can have disastrous effects on the case. Without a proper fire scene investigation, an arson case can never be successfully defended. Far worse, the potential for exposure to extra-contractual damages and a bad faith claim is real.

The fire investigator should be carefully selected. There are many fire investigators in the business today and far too few are properly qualified. The fact that one holds himself out as a fire investigator does not mean that he really is qualified to claim the title. It is up to the insurance company to ensure the origin and cause expert is properly qualified and capable of conducting a competent fire scene investigation which can be relied upon.

Hiring a fire investigator should be approached the same way as hiring an attorney to handle the case. Unless you are personally familiar with the professional qualifications, experience, training and reputation of the fire investigator, you should determine this information directly from the investigator before the hiring decision is ever made.

You should request the CV or professional resume of the investigator and review it carefully. What is the investigator's background in fire investigation? How much experience does the investigator have in fire scene investigation? Where the investigator has a public sector background in fire investigation (as most do), it should be determined to what extent the experience is derived from actual fire scene examination. A former fire inspector may have had primary responsibility in code enforcement matters and fire inspection issues. With a law enforcement background, it must be known if the investigator had significant experience in fire investigation as part of his duties and responsibilities. What percentage of his cases were fire investigation cases? Was he responsible for the actual origin and cause determination or only involved in the post-scene investigative phase of the case? How many determinations of origin and cause did the investigator make in that position? An investigator who claims to have conducted more than 250 origin and cause determinations annually should raise concerns. The sheer logistics involved in conducting that many investigations make such a number improbable. At a minimum, it suggests the investigator was unable to thoroughly investigate those fire scenes with such a caseload. Some investigators have claimed to have conducted hundreds of investigations annually by including those cases in which they were only indirectly involved or the cases of other investigators they supervised. Those fire scenes should not be considered a meaningful measure of the investigator's experience.

The experience level of an investigator should include the number of times he has testified at trial as an expert witness. Actual courtroom testimony at trial as an expert witness means the investigator has experience in presenting a case to a jury. Some investigators will claim to have experience as an expert witness from deposition testimony or testimony at pre-trial hearings. While this is another important measure of experience, it can never take the place of courtroom testimony at trial. When questioning an investigator about his background and experience in testifying as an expert, it should be made clear this is referring to courtroom testimony at trial as a court-qualified expert witness. In discussing this with the investigator, he should be directly questioned about the results of the trials. How many of the cases resulted in a jury verdict finding arson had been committed? How many times has the jury found the fire was not deliberately set? Has the witness ever failed to qualify in court as an expert witness?

Training is an integral part of every fire investigator's qualifications. The investigator should provide a detailed listing and chronology of all training received in the field of fire investigation. Every investigator should receive training at least annually, if not several times each year. There should be concerns about gaps in attending training programs by the investigator in recent years. With all of the new developments in fire science in recent years, the investigator should be able to demonstrate adequate training in those issues on a regular basis. There are many different programs on fire investigation presented each year by many different organizations concerned with fire science issues. The investigator should be able to demonstrate training with a diverse number of organizations, rather than just one program presented by the same organization every year. However, the quality of the training program or organization should be considered, as well as the availability of other training programs in the region. Certainly, a diversity of training should be sought whenever possible.

An investigator's involvement in professional organizations and activities is equally important. Does the investigator belong to any professional organizations concerned with fire investigation issues? Which organizations are those? Has the investigator had any active involvement in the organizations through committees, projects or leadership positions? How long has the investigator held membership in those organizations? Has the investigator dropped his membership in any such organizations? If so, why was this done?

Training provided BY the investigator is an important measure of experience and reputation. Has the investigator ever been asked to provide training in fire investigation issues? If so, when and where? How many times has the investigator provided such training and for which organizations or groups? Similarly, it should be determined if the investigator has ever conducted or participated in any studies or tests relating to fire investigation issues. Has the investigator ever conducted any test burns? Has the investigator ever conducted any studies of fire science issues? Complete information should be obtained about any such activities on the part of the investigator.

Is the investigator aware of the current issues in fire investigation? Is the investigator familiar with NFPA 921 and its full implications for fire scene investigation? Is the investigator aware of the challenges to expert testimony under the Daubert case? Has the investigator ever been challenged under NFPA 921 or the Daubert case? If so, what was the outcome of the challenge? Is the investigator fully prepared to respond to those issues in your case?

The investigator should be questioned about his methods and procedures for conducting an origin and cause investigation. The investigator should be able to fully explain all of the procedures and steps taken in the investigation of a fire scene. While NFPA 921 remains a controversial document in the field of fire investigation, the investigator should demonstrate an awareness of the recommended procedures and basic adherence to those procedures under NFPA 921. The investigator should be able to clearly explain the procedures required by NFPA 921. Any investigator who is unable to do so should raise serious concerns about his abilities and qualifications as a fire investigator.

Another important consideration is the investigator's relationship with local fire service and law enforcement agencies. The investigator will have to be able to work with those groups in order to carry out the investigation. Does the investigator have a working relationship with those groups? Is the investigator known and respected by those groups? Have there been any past conflicts or problems in working with those groups? It is a serious problem when an investigator is unable to work with local fire service and law enforcement agencies. Access to the fire scene may be restricted, evidence taken by the local investigative agencies may not be made available to the investigator and information developed in their investigation may not be shared with the investigator if there is not a working relationship.

There are other aspects of professional qualifications which must be known. Is the investigator licensed to conduct origin and cause investigations in those jurisdictions where licensing is required? How long has the investigator been licensed? Has the investigator's license ever been suspended or revoked? Have there been any inquiries or investigations of the investigator himself? Is the investigator insured and/or bonded? Does the investigator have adequate liability insurance coverage? The issue of insurance and licensing should be documented by the investigator and shown to the insurance company representative.

The method of collecting, analyzing and storing evidence must be discussed with the investigator. How will the evidence be collected by the investigator at the fire scene? Where will it be sent for laboratory analysis? Is the laboratory facility qualified to analyze the evidence under established guidelines and procedures? How will the evidence be transported to and from the lab? How and where will the evidence be stored at all times? Will the evidence be properly preserved for use at trial?

The investigator should be asked to provide a sample report for review. Is the report in a proper format? Does it contain adequate photographic documentation? Are there accurate diagrams of the fire scene? Is the report objectively written and properly worded? Does the report look professional? If there are concerns about the report, there should be concerns about the investigation itself.

These are the issues which must be discussed before the investigator is ever retained. When he is retained in the case, there are additional steps which must be taken.

The selection of an origin and cause expert should not take place after a fire has occurred. It should be done well in advance of the time when the investigator's services will be needed. When the time comes to use the investigator, the only remaining consideration is the assignment of the case.

When the investigator is assigned to determine the origin and cause of a fire, the complete scope of the assignment should be made clear to the investigator. If there will be a formal report required, a timetable should be established for providing the report. If only a preliminary report is required, this should be discussed and a timetable established. If the investigator will be strictly limited to the fire scene investigation, this must be understood. If the investigator will have other responsibilities such as interviewing witnesses or obtaining records, this must be discussed when the assignment is made. The investigator should be told the name(s) of the insured and who should be contacted for permission to enter the fire scene. If the fire scene remains under the control of fire service and law enforcement agencies, the investigator should be told of this so that contact may be made with the appropriate person in charge of the scene. Any other specific requirements or concerns about the particular fire should be discussed at the time of the assignment. The investigator should then be ready to carry out the investigation as directed.

If the origin and cause expert has been carefully selected and has the requisite background and experience to conduct the investigation, the insurance company will be able to rely upon the findings of the expert in the investigation of the fire. Should the case proceed to trial, the insurance company will be prepared to prove the issues through the testimony of the fire investigator.

Reprinted with permission from the author.