Firefighting is a hot, exhausting, and dangerous job, and it’s one in which 75 percent of the people doing it do it for free. While I have been practicing law for over 30 years, I’d like to speak to you from the volunteer firefighter perspective so I can convey what we experience when our pagers go off. With this background, fellow attorneys and claims professionals can better understand how to most effectively solicit information from us.
Before I start, I’d like to mention that most of this was written prior to the horrific wildfires taking place in California, and am compelled to comment. These large-scale forest fires involve literally thousands of firefighters in the suppression efforts. Wildfires have been started by lightning, barbeques, a hammer, sparks from a broken-down car, downed power lines or lines overgrown with vegetation, and welding torches. The Camp Fire, now the largest and most deadly fire in California’s history, has caused at least 88 deaths (with hundreds still missing) and destroyed more than 12,000 buildings, burning more than 142,000 acres. An entire town was there one minute and gone the next. At its peak, the fire was moving at a football field a second.
The reconstruction of one of these fires, moving back to where and how it started, is a painstaking effort conducted by both independent and fire service experts. While it is logical to try to start at the top of the food chain in terms of deposing these experts and incident commanders, talking to the first “boots on the ground” may be equally important. Who, where, how, when, and what these first-arriving units saw and experienced can potentially narrow the cause and area of origin. These wildfire firefighters are highly trained and highly experienced not only in fire suppression, but also observation. The same skill set applies for commercial or residential fires.
The Firefighter’s Mindset
Some collective meditation can help you better understand firefighters’ perspectives when their pagers activate. Think of the middle of the night (and not one of those nights we all have where we lie awake thinking of some case or worrying about a deadline.) It is dark and quiet, and you are under a bunch of warm covers sound asleep. Your world is at peace.
That peace is shattered by the shrieking noise of your firefighter’s pager—like a third grader at his first violin lesson, only 10 times louder and harsher. Your heart is racing as you fumble in the dark to shut it off and get dressed as quickly as possible, with no time to worry if your shirt is on inside out or backwards. You run out of the house and jump into the car, driving not so calmly to the firehouse to get dressed again: bunker pants, boots, bunker coat, hood, and a helmet are added as fast as possible before running for the truck. As you jump aboard, you realize that you have gone from a dead sleep to a screaming fire truck in about three minutes.
Once on the truck, you get out your air pack and mask, trying to listen to the radio for updates and getting instructions on what your role will be when you exit the truck. If it is a real working fire, then you go running into a wall of heat and smoke. Sometimes there is so much smoke that you cannot find the fire without a thermal imaging camera. You are crawling, blind and baking, hoping to find the fire so you can douse it, all the while hoping that you don’t fall through a hole or that the building doesn’t cave in. Once you find the fire and get water on it, the water flashes to steam. Your mask fogs up, which makes it even harder to see. You are not baking any more, but rather feel like a lobster about to be boiled.
When Training Kicks In
As the fire is knocked down, the building is ventilated, and the steam, heat, and smoke are reduced, you start to think about preserving the scene. After all, firefighters are trained to think about these issues. The textbooks we study have entire chapters devoted to preserving physical fire scene evidence.
We are taught that the entire fire scene should be considered evidence, and that evidence gathering should begin as soon as we roll up to a scene. For instance, as we arrive, we look to see whether there are cars in the driveway, which may tell us if there are people home. If we pull up at 3 a.m. and there are three cars in the driveway, then we can assume there are people in the house.
Additionally, are there toys scattered out in the yard? What types? These may indicate children or teens in the house. We’ll also look at where the heaviest smoke is coming from and the color of the smoke. These observations can help a fire investigator determine where the fire started and how long it has been burning.
We are also taught to look for physical evidence, such as electrical conductors, gas cans, closed sprinkler valves, tripped circuits or other disabled devices, fire patterns, and footwear impressions, as well as the absence of other things that you would expect to see. For instance, is the house devoid of papers? Are closets empty? Are there family photos missing? We’ll look for damage to gas piping and anything else that is not quite right. We are taught to leave as much as we can untouched—although that doesn’t always happen.
What the Guidelines Say
NFPA 921 has a specific section titled, “Role and Responsibilities of Fire Suppression Personnel in Preserving the Fire Scene.” For those of you keeping score at home, it is Chapter 16.3.5. It states generally that fire officers and firefighters have been instructed during basic fire training that they have a responsibility at the fire scene regarding fire investigation. That is true. What is also true is that prompt control and extinguishment of the fire preserves evidence.
921 also tells us that we are under an obligation to preserve the fire scene and the physical evidence.
We are instructed to be careful when pulling ceilings, breaking windows, collapsing walls, and performing overhaul and salvage. Overhaul operations consist of breaching walls, ceilings, and dead-air space to confirm that the fire is not still burning in those areas. It is really embarrassing to get called back to a fire scene after you have packed up the hose and the equipment because a fire reignited. We’re also looking to see if the building’s structural supports have been compromised. Obviously, we don’t want the building to fall down on our heads. (That hurts.)
Does overhaul have the potential of ruining evidence? Of course, so we try to do it systematically, because even though firefighters like to break stuff, it’s hard work. Instead, we’ll use a thermal imaging camera, punch smaller holes in walls instead of tearing the whole thing out, and we’ll try not to flood things—but we do need to make sure the fire is out.
Do we need to throw every piece of furniture out onto the front yard and pull down every piece of drywall? Not usually. Well-trained fire officers and firefighters will try their best to keep damage to a minimum.
Probably the most harmful substance to most evidence during fire suppression efforts (other than the fire and smoke) is water. It can damage wood, papers, art, electronics, and pretty much everything else not made of plastic or stainless steel. If we can get salvage covers over things and get art off the walls and protected, we do that—not only do we preserve potential evidence, but also we help the people we serve.
Questions to Ask
When you, as an attorney or claims representative, come to a fire scene, there are several things that you can count on: It will be dirty; things will have been broken; and things will have been moved. So you are going to want depose the firefighters, since they will help you reconstruct the scene.
Most volunteer fire companies do not see a lot of fires, so the ones they do see are remembered vividly.
As them detailed questions about what they saw. Make the questions logical and start with, “Where were you when you were notified of the fire?” Ask them to take you through their response step-by-step. How did they get to the firehouse? What truck were they on, where was their seat, and what was their assignment? Some fire houses—especially “professional” fire departments—have designated seats with designated duties. Be sure to use pictures.
Following are some areas of potential questioning. Be sure to consult with your experts in advance of the depositions to find out what they need to know, too.
• The name of the fire company/companies and its website address.
• The dates the witness served with the company, along with any and all positions held.
• The first and last names of each chief, deputy chief, assistant chief, and line officer associated with each fire company/companies where the witness served.
• Whether the witness is, or has ever been, an officer in a fire company, and, if so, the rank and in what capacity the witness served as an officer.
• Provide a description of the duties and responsibilities of each position the witness has held as a volunteer firefighter.
• Talk to the witness about his training and get a list of each certification, the entity that issued the certification, and the certification requirements.
• Ask about how many runs, on average, the witness goes on. When was the last date that the witness made a call?
• Ask whether the witness is a qualified driver, and the year the witness became one.
• Ask whether the witness is assigned a position on any particular apparatus during calls.
• Ask whether the witness holds a rescue certification, and, if so, provide the date it was obtained.
• Ask whether the witness holds a firefighter certification from whatever state he runs in, and whether he has the National Firefighter I or II, or other national certifications. Does he have any other specialized certifications?
• Have the witness describe, in detail, the training he received and what that training entailed. Be sure to specifically ask about evidence preservation training.
• Ask whether the witness has received any awards arising from his service.
• Walk the witness through the call inch by inch, step by step. What did he see, touch, encounter, and do?
Many of these folks will have a distrust of you. One of the chiefs of a local company still refers to me as that “goddammed lawyer.” Although he says it lovingly—that’s my interpretation, anyway—it shows that you need to put them at ease. That’s what all the background questions are intended to do.
The firefighters who put their lives on the line for their communities across the country everyday are decent people. If you treat them as such, then they will return the favor. Ask nicely and they will give you a phenomenal amount of information to use in your reconstruction. If all else fails, then donuts help.