It has long been the practice that, if your opponent hires an ink expert to opine on the age of ink writing on a paper document, the first expertise practiced is to poke
20 or more holes in your precious evidential document. This permanently damages portions of the key wet-ink writing your lawsuit depends on. In 1999, a book was published including a chapter by me on cross-examining an expert on ink dating:
Carta & Inchiostri; tecniche di accertamento. A cura di Pacifico Cristofanelli e Silvio Lena. 1999, AGI, Ancona, Italy. Pages 204-209: Indagine critica sulla datazione della pasta biro. Traduzione e adattamento de Silvio Lena. [Original English title: “Dating ballpoint inks; a survey and critique.”]
The chapter had five lists totaling 24 issues to consider when examining the ink expert in hopes of blocking, or at least mitigating, such spoliation of original evidential documents in which relevant evidence is permanently damaged. Thus original and irreplaceable evidence is made unavailable to either party and to the fact finder in a court of law without its full scope and implications having been explored. Please note that the four month limit for reliable ink testing stated in the published text is now reasonably contended to extend to at least two years upon certain conditions. For example, see Claudia Berger-Karin, et al., “Comparison of natural and artificial aging of ballpoint inks,” 53 Journal of Forensic Sciences, (989-92), July 2008.
The published court case I relied on principally for technical issues on which the courts themselves relied was U.S. v. Bruno, 333 Fed.Suppl. 570 (DC, E.D. PA
1971). One might object that the Bruno case was 28 years old when my chapter was written and the book published, and now it is 48 years old. However, that only illustrates how back-in-the-scientific-stone-age scientific research in some document examination issues can be. The case report In re Wait’s Will, 1 Misc. 784 (Surr Ct. N.Y. County 1888) inveighed against neglect of some of the same issues of reliability that were considered in Bruno. Most of the issues my chapter suggests trial attorneys inquire about have not yet, to my awareness, been addressed in scientific research and publications. Nor will the most basic of them likely be considered by the expert who will be enriched by the spoliating impoverishment of the documentary evidence essential to your case at court.
There is one outstanding set of considerations that hopefully will inspire you to seek, at a modest cost, a critical expert review of the ink expert’s assurances that the expert spoliation is at worst merely minor. You must, however, protect your documentary evidence from permanent spoliation of not so-minor physical destruction of original written matter. Once the judge accepts the expert’s self- canonization as one who is perfectly innocent of ever dastardly defacing a document, in less than a day’s effort the expert will do so at a cost to you of more than most laborers make in a month. The chances of having a reversal of this judicial sanctification of the document’s partial destruction are next to nil. But if the court is initially advised of the reality of the proposed spoliation, far more often than not the document, along with the court’s full control over the situation, is protected.
At a conference, one ink expert said publicly the equivalent to saying that judges always take his word as unquestionably and reliably true, simply because he told them so. Fortunately, in a then pending probate case where that ink expert had been retained by contestants, he never got his spoliating hands on the document in question so that the inheritance went to the designated heirs. A colleague, now retired, had submitted a report authenticating decedent’s disputed signatures, while I had submitted a declaration under penalty of perjury explaining how the contestants’ ink expert offered no evidence to support his scientific assertions. Fortunately for the threatened document, the cases where he was either disqualified or restricted as an expert witness did nothing to substantiate his glowing, self- bolstering affidavit.