Giving 'Em the Finger, Part I: Strategy Considerations

You may have seen by now the case of the finger-in-custard.  A customer bought custard which contained the newly severed finger of a worker in the back of the store.  The store manager asked for the customer to return the finger, and the customer refused.

This incident raises issues in a number of areas of law, including evidence, tort, property, criminal law, and ethics.  I'll address some of those issues in a set of future posts.  This initial post will focus on decisionmaking by the customer and his attorney.  Or:  You are an attorney, sitting at your office.  Customer calls you and says "I just found a finger in my custard!"  How do you advise him?

At this point, there are basically two choices.  Your client can return the finger within a period of hours, or hang on to it.  Each has potential advantages and disadvantages.

Keeping the Finger keeps an important piece of evidence in your client's hands.  (This may be particularly important given the environment following the recent Wendy's finger incident, where the store has attacked the accuser and accused her of fabricating the incident). 

In addition, keeping the finger allows your client to have it tested for disease.  This is important, since your client wants to know whether he may potentially be exposed to AIDS or herpes or tuberculosis from ingestion of custard containing the body parts of another person. 

The downside of keeping the finger is that it potentially opens up your client to tort or criminal law claims, which will be discussed in a future post.  Also, it may make your client look less sympathetic before any jury.

Giving back the finger may weaken your chain of evidence.  It also will make it harder to test for diseases.  On the other hand, giving back the finger insulates your client from any tort or criminal liability that may arise from keeping the finger. 

Given the two choices, is it a valid choice to keep the finger?  Yes.  An attorney could reasonably believe that the exposure to unknown (to be discussed) criminal and tort liability is outweighed by the gain of keeping the evidence at hand, and having it available for testing.

Is there a third way?  Various commenters have suggested that it might be possible to have the parties sign affidavits, thus preserving the evidence.  That seems like a decent option.

However, that option is not a silver bullet.  First, I think it's an open question whether an affifdavit is as good of evidence as the actual finger.  (There are advantages to having the finger, which is unambiguous).  Also, the affidavit route still prevents your client from having the finger tested for disease. 

So even given the option of a third route, it's still a valid choice to hang on to the finger.  It depends on how you, as a lawyer, weigh the evidentiary and testing value of retaining the finger against the potential liability in keeping it. 

Coming up, in Part II:  Evidentiary Issues.