If someone slips and falls in a parking lot, was it the fault of the property owner because he didn't plow, or was the snow not deep enough in that area to prove a duty to plow?
If a child darts in front of a car at dusk, were the conditions at that moment in the day enough for the driver to be able to see the child? Should the driver legally have had his or her headlights on, and would that have made any difference?
These and other situations are when lawyers and insurance adjusters turn to experienced meteorologist and weather expert Cliff Nicholson through his agency, Weather History Research, one of few if not only full-time service providers of its type in Indiana.
Nicholson, formerly a full-time TV weather reporter in Indianapolis who still reports the weather on weekends and on an as-needed basis for WTHR Channel 13 in Indianapolis, runs Weather History Research full-time. He started doing forensic weather research part-time in 1997 and went full-time in 2000.
He credits Gary Barnett of Barnett Forensic Services Inc., based in Noblesville, for giving him the idea because Barnett needed weather information for his work.
Nicholson's client list includes Allstate, American Family, Chubb Group, Farmers Insurance Group, Indiana Farmers, Indiana Insurance, MetLife, Nationwide, Progressive, The Hartford and a host of other insurers.
"I work for 146 insurance companies throughout the U.S. and approximately 80 law firms, mostly in Indiana," Nicholson said. He has conducted more than 2,300 investigations for insurance claims and more than 300 cases for law firms.
An 'education process'
Most of his work is done out of his home office in Cicero, subcontracting to Hailtrax for hail reports and U.S. Precision Lightning Network for lightning-related cases.
He has been to court on 11 occasions and estimated about 99 percent of the cases he's been involved with are settled.
"When I testify in court, I try to provide an education process for both sides," Nicholson said. "I'm an objective witness. One side pays me, but I'm trying to educate both sides and the jury about how I came to my conclusions that certain weather happened."
He added, "If you're watching a TV broadcast, they're talking about what's happening currently; I'm talking about what happened in the past. If there's high pressure to the east, and low pressure to the west, that would cause winds. Then I can show data from the National Weather Service to confirm that information. ... If either attorney wants to question me on that conclusion or what other additional information is needed, I can explain that in court as well."
But how often is weather information needed?
"I think weather is a factor in a very high percentage of cases," said attorney Michael Stephenson of McNeely Stephenson Thopy & Harrold in Shelbyville, who has used Weather History Research a handful of times in the past few years. "Weather that can have an effect can be everything from ice to rain, if there's a sudden downpour, or bright sun. We may also see some effects of those high winds from a few weekends ago."
Another attorney who has used Nicholson's service, Gregory Laker of Cohen & Malad in Indianapolis, said it's a factor "in almost every parking lot slip and fall. ... For instance, if there was a duty to plow based on how many inches of snow fell on a parking lot."
Laker added that in some instances the amount of snowfall may even differ between Zionsville and Carmel, even though the distance between the centers of the two communities is only about 10 miles.
Another type of case Laker knows of where weather was a factor is a decadesold case where a student was found hanging in a stadium. His boots were clean at the time he was found, even though the ground conditions in the stadium were wet and muddy, which gave the student's father cause to believe that his son was murdered.
Typically when someone comes to Nicholson, he will receive a question about the weather for a specific date and time and whether the alleged or claimed information is accurate.
"We can find size, date, time of hail. In cases where lightning may have damaged a computer when it struck someone's house, we can find out if lightning hit at or near that location," he said.
Another typical example is whether a slip-and-fall injury was caused by weather conditions.
"We can go in and look at data for an area and get a pretty good picture of what the day was like ... as far as temperatures, visibility, was it dark or light at twilight, wind speeds, wind chill temperatures. For instance, people have a tendency to run when the wind chill is frigid.
"Or we've had people where there was heat exhaustion, and I'll go find out what the heat index was that may have led to something."
Bringing documents to life
While attorneys could try to find the information on their own through the National Weather Service and other data providers, Nicholson and the attorneys who use the service claim that the service saves them time, something litigators may have a short supply of when preparing for a case.
"He brings documents to life," Stephenson said. "It's much easier to understand if he explains it than looking at pieces of paper.
"Typically my experience with him is when there's a bad storm, he can relate the surrounding events. If it's a beautiful September day three or four years later, it's hard to remember a storm when I-69 was closed due to ice versus looking at a piece of paper."
Access to weather information may also be a necessity in some cases, which may be part of the so-called "CSI effect" or "tech effect," as Dennis Stolle of ThemeVision, located in Barnes & Thornburg's Indianapolis office, explains.
"There have been studies of people who actively watch shows like CSI and people who don't, but there's an observable tech effect where society in general is so accustomed to advancements in science that there's a belief that the information is always readily available to attorneys," Stolle said.
"I think that's the kind of information jurors may have in the back of their mind," he added. "'What was the weather like?' Lawyers have to live up to that expectation that information is available to all lawyers."
ThemeVision's Web site, www.themevision.com, has a link to "Empirical Study Clarifies Rumored CSI Effect."
Stephenson and Laker agree that jurors do expect more, but they added that sometimes it comes down to resources available for a case that determines whether they hire a weather expert.
And because jurors may recognize Nicholson from TV, he may also add another value to attorneys.
"If you can make it more entertaining, it's a good thing," Laker said.
Yet, if a medical expert would be more informative in a particular case, he'd hire the medical expert instead. He added he'd need to balance which type of expert to hire on a case-by-case basis.
The service is something Nicholson plans to continue indefinitely.
"Even when I retire, I will still do Weather History Research," he said. "I really enjoy it. It's a fun job."