MINNESOTA PARALEGAL ASSOCIATIONoffers insight into new MnCP program

BRADLEY J. AYERS

Seeing Past the Smoke – Applying the Scientific

Method to Fire By Haley Freeman

ATTORNEY OF THE MONTH

Eclipse Productions

H umans are the only creatures on the planet who exert con-trol over the element of fire. We balance its gifts of light,

comfort and warmth against its propen-sity for death and destruction. As a boy, Bradley Ayers took a particular interest in fire – an interest that led to a lifelong career as a defender of corporations, in-surance companies and property owners implicated in fire-related calamities. “I re-member as a kid being fascinated by fire. I would throw all sorts of things into our bonfires to see what would happen, how different products would react. My mom was always lecturing me to be careful. I was enthralled by the whole physics of fire and what it could do,” Ayers recalled.

Ayers also experienced an early connec-tion to government and law. “My dad prob-ably influenced my choices most of all. He was in the army and ultimately recruited by the CIA to train Cuban militants to over-throw the Castro regime in the early ’60s. His career piqued my interest in investiga-tive techniques and legal analysis.”

After obtaining his law degree from William Mitchell College of Law, Ayers began his career at Cosgrove and Hanson and then at Flynn, Gaskins & Bennett, where he worked principally for insurance companies and product manufacturers in cases involving fires and explosions. “We investigated insureds for possible involve-ment in arson and assisted corporations in investigating product-related fires and explosions. It was a great experience.”

Ayers accumulated years of highly spe-cialized expertise working with some of the top legal talent in the field. “Lawyers Hugh Cosgrove and George Flynn were both a great influence on my practice of law and the manner in which I go about it. They were encouraging, but they also weren’t shy about offering their criticism. It made me a better lawyer. They were the people I looked up to and tried to emulate as I framed my career and eventually be-came a partner at Flynn, Gaskins.”

In 2010, Ayers joined Morrison Sund, PLLC, where he is a leader in the firm’s litigation section representing insurance companies and corporations in fire and explosion-related cases. Morrison Sund

has some of the top talent in the country in this area, as well as in the areas of real property, corporate and estates and trusts. “I am fortunate to be able to work with such highly skilled partners as Brian Sund, Jim Morrison, Jim Clay, Mike Murphy, Jane Welch, Eric Nasstrom and Ryan Dryer. Not only are they great lawyers, but we genuinely enjoy spending time together running this firm. There is great camaraderie here.”

Fire investigation standards have be-come far more sophisticated over the course of Ayers’ career. In 1992, the Na-tional Fire Protection Association revolu-tionized the way in which fire causation was determined when it released NFPA 921 “Guide for Fire and Explosion Inves-tigations.” This was the first attempt by the industry to standardize processes for fire investigation. “NFPA 921 changed the whole arena of fire investigation. Now, ex-perts are required to apply the scientific method to fire investigation.”

In 1993, the Daubert standard further raised the bar on the quality of expert testi-mony offered up in the courtroom. “Under this standard, the factors that may be con-sidered in determining whether the meth-odology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been sub-jected to peer review and publication; (3) its known or potential error rate; (4) the ex-istence and maintenance of standards con-trolling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.”

“As a result of the Daubert standard,” Ayers explained, “the courts have become much more stringent in scrutinizing ex-perts, their credentials, how they arrived at conclusions and whether or not they have tested their hypothesis. In the end, this is much better result for society, as we are far more likely to arrive at the right conclusion than we were in years past.”

In 2011, NFPA 921 was refined further, eliminating the process known as “nega-tive corpus.” Previously, fire causation was determined by experienced experts

who formed a hypothesis about the fire. When all possible ignition sources had been eliminated, a determination was made based upon an educated process of elimination. “Using the negative corpus, fire investigators could conclude that a fire had been intentionally set by eliminating all accidental causes of ignition. The only logical conclusion left was an intentional fire. This process, however, did not apply the scientific method nor require affirma-tive evidence to determine whether the cause of a fire was incendiary.”

An arson determination turns on three, key evidentiary points: whether the fire was intentionally set; whether the accused had the motive to set the fire; and whether the accused had either the opportunity to set the fire or to arrange to have the fire set. “Computers and cellphones have become critical sources of information in these cas-es. We can look for incriminating Internet searches or analyze GPS to pinpoint where someone was at the time of the fire.”

Ayers continued, “In an investigation, we take physical samples from the scene to test for accelerants. When we have a positive test result for an accelerant like gasoline, we have evidence that the fire may have been intentional. The downside is that a negative result for a fire accelerant at the scene doesn’t mean one wasn’t used. Accelerants can be washed away, burned up or evaporated. So we look for other af-firmative evidence, like multiple sources of ignition or the use of a flammable tool.”

Clearly, fire investigation is a life and death matter, and an inexperienced expert or attorney can jeopardize the investiga-tion and the case. Ayers has successfully defended a number of high-profile cases involving wrongful death, serious per-sonal injury, and millions of dollars in property damage, demonstrating his high degree of competence and skill in the fire field. “Working with law enforcement,

I was enthralled by the ... physics of fire

and what it could do.”

January 2015 Attorney at Law Magazine® Twin Cities | 17

fire investigators, and mechanical, electrical and metallurgic engineers, you start to learn some of the basic principles of these applied sciences. I am incredibly grateful for the op-portunity to work with these highly trained professionals and for their sharing of their wealth of knowledge. I would never be where I am at today without their assistance.”

Preservation of evidence poses an-other unique challenge in fire cases. “If you don’t know what you’re doing, one mistake can cost you everything. First, a scene must be secured. All interested parties must have a chance to see the scene before anything is removed. Then evidence must be carefully extracted and packaged before sending it to a lab to have it forensically analyzed.”

“We represented a property owner in a tragic case in Wisconsin involv-ing a cabin explosion that killed a woman and severely injured her two sons. The scene investigation alone took several weeks. We provided 24-hour security to make sure no evi-dence was removed or altered, noti-fied over 30 parties who had a right to inspect the scene, and prepared an investigation protocol that everyone had to agree on. This process is very complex and expensive, but ultimate-ly it is a good thing, as it ensures that we reach the right determination.”

In summing up his 25-plus year ca-reer in the fire field, Ayers reflected, “I am involved in a fascinating and thrilling area of the law profession. Every fire or explosion incident in-volves a unique set of issues and the application of science to determine the answer. The human element is always variable and unpredictable. I am confident in the skilled and me-ticulous individuals I work with, and my goal is to continue to expand Morrison Sund’s practice at the na-tional level. It has been a great ride.” As far as “great rides” go, outside of his practice, Ayers has recently de-veloped a passion for skydiving. “My dad turned 79 last year. He was a paratrooper in the army, and wanted to make one last jump before it was too late. I thought that if he could do it, I certainly could do it, so I asked if I could accompany him. I ended up doing five static jumps and two free falls last summer, and have become addicted to the sport. There is the fear, the thrill and then the absolute tranquility you feel when that chute opens up and the tapestry of the earth unfolds below you. It is not unlike my fire practice, which involves a mea-sure of unpredictability and the hu-man element, but not nearly to the degree of a 10,000-foot free fall. It has been a transforming experience.”

AT A GLANCEMORRISON SUND, PLLC

5125 County Road 101, Suite 200Minnetonka, MN 55345

(952) 975-0050www.morrisonsund.com

PRACTICE AREASProduct LiabilityPremises Liability

Insurance & Construction Litigation

EDUCATIONJuris Doctor, William Mitchell College of

Law, 1988Bachelor’s Degree, St. John’s University,

1983

PROFESSIONAL EXPERIENCEPrincipal, Morrison Sund

Associate & Partner, Flynn, Gaskins & Bennett, LLP

HONORSPreeminent Rating of AV from Martin-

dale-Hubbell Recognized as a Super Lawyer by Min-

nesota Law and Politics

HOBBIESHockeyCycling

Skydiving

FAVORITE QUOTE“Do good. Ride hard. Live well.”

Eclipse Productions

Eclipse Productions

I am involved in a fascinating and thrilling area of the law profession.