To win a personal injury claim, you must gather, identify, and catalogue relevant information. Preserving evidence of the other party's negligence is an integral part of the claim process. The quality and quantity of your evidence can mean the difference between an average personal injury settlement, and a substantial one.
To be effective, your evidence must clearly show the actions or omissions of the at-fault party were the proximate cause of your injuries. Without this proof, you have no claim.
A claims adjuster won't offer you a settlement unless they see tangible evidence their insured (the at-fault party) was responsible for your injuries. Physical evidence can be separated, identified, then marked as exhibits in support of your claim.
Examples of physical evidence include:
Preserving evidence requires work, and some accident situations can present a challenge. For instance, if you're severely injured in a car collision, you won't be able to take photos of the scene. Or, if you slip and fall in a store, they may not voluntarily give you security camera footage of the incident.
Moreover, once you find the evidence, you have to organize it logically, for easy access by you and the claims adjuster.
Sometimes, an at-fault party will destroy evidence to hinder the injured party's case. This is known as spoliation of evidence. Attorneys often send a letter to prevent this from happening. The spoliation letter puts the at-fault party on notice, and makes it harder for them to argue the evidence was destroyed accidentally, or in the normal course of business.
If evidence is destroyed, there's not much you can do about it outside of court. If your case does go to trial, your attorney could then file a spoliation motion to have the destroyed evidence viewed in a favorable light.
Your attorney would argue the evidence was destroyed either intentionally or negligently, either of which would likely result in a favorable outcome on the motion. This could subject the at-fault party to fines, and even incarceration for contempt of court.
If your personal injury claim depends on evidence that you think might be destroyed by the at-fault party, you can send a spoliation letter yourself. This only applies if you're handling your own minor claim, but think you may have to file a lawsuit in the future. Your letter won't carry as much weight as it would coming from a licensed attorney.
It's best to add the spoliation language to your notification letter, since it goes out shortly after the accident. Here's a basic notice you can include...
Template for Spoliation Letter
(After your heading, introduction, and notice of claim, state the following...)
Additionally, this letter will serve to provide you with notice that you have an obligation to appropriately preserve and retain any information that may be relevant to my claim.
This includes, but is not limited to, equipment that was involved in the incident, along with photographs, video recordings, recorded audio or computer media, incident reports, and all other evidence relating to the incident, which is presently in your possession, or the possession of your employee or agent.
Please ensure this letter is provided to the appropriate person in your office who is charged with the custody of evidentiary items concerning this incident. It is imperative you do not dispose of, alter and/or modify evidence in any manner. Disregarding these obligations may be considered spoliation of evidence.
YOU ARE HEREBY PUT ON NOTICE NOT TO DISPOSE, ALTER, MODIFY AND/OR REMOVE THE ABOVE MENTIONED EVIDENCE, OR ANY OTHER RELATED RECORDS.
If your injuries are serious, and there's a chance the at-fault party may destroy crucial evidence, consult an attorney immediately. There's too much at stake for you to handle a serious injury case yourself. Once retained, your attorney can immediately send a more comprehensive spoliation letter to preserve important evidence.
Just about every injury event presents a limited window of opportunity for collecting important types evidence. There's no better time than at the scene. That's when the evidence is fresh, and most accessible. Once that window closes, evidence becomes more difficult to come by.
Do your best to take photos at the time of the incident. Car accidents, slip and falls, assaults, and dog bite cases all present opportunities to preserve photographic evidence at the time of the injury. Be sure to engage your camera's time stamp function.
Photos should include:
Photograph your injuries as close to the time of the accident as possible. These images can be very graphic and persuasive to a jury. Also photograph your injuries several hours and days after the incident, and as your treatment progresses. It can take time for bruises and swelling to show up.
Have the photos developed. If your camera didn't stamp each photo with the date and time it was taken, write it down on the back. As extra proof, you can take a photo of your watch or cell phone display showing the time and date.
Taking photos is critical after a car accident. Digital cameras take the best photographs, but if you don't have one with you at the time, use your cell phone camera. Photographs of the scene are very strong evidence, regardless of whether it's a car, truck, motorcycle, or bicycle collision.
Slip and Fall Injuries
Visual evidence is also important in slip and fall cases. Photograph the substance or hazard on the floor which contributed to your fall, and take wider shots of the area around it. Also ask management to complete an incident report, and request a copy for your records.
Defective Product Injuries
Photos of a defective product are good to have. Try not to move or change the product's appearance at all. If you still have it, save the packaging. Also keep the purchase receipt, warranty and instruction manuals. If you were burned by a product, keep the clothing you were wearing at the time, especially if a piece of it was burned.
Witness statements can be powerful evidence. Independent, third-party witnesses have no personal or financial interest in your claim. For that reason, their statements are taken seriously by the claims adjuster. The adjuster knows if the claim ends up in court, an independent witness' testimony for a victim can work against the insurance company.
Witnesses can also provide evidence you may have overlooked at the time of the injury. For example, a witness might say she overheard the at-fault driver say he didn't see you, or was texting right before the accident. Information like this, provided by independent witnesses, can be quite influential in your claim.
After a slip and fall injury, staff will often hurry to clean up the spill. A witness may be able to confirm the substance was actually there. Another may say she previously reported the spill to management, but they ignored her. One of them may also be able to confirm she saw you in severe pain right after the injury.
You must gather witnesses' information quickly, before they leave the scene. If you don't have detailed contact information, they will be much harder to track down. And if you wait too long, their memories of the incident may fade.
As soon as possible after the accident, return to the scene. You might be surprised to see some items you missed. With auto accidents, there might be some broken car parts, skid marks, or other evidence that contributed to the accident, but was overlooked at the time of the collision.
Take some additional photographs. You can never have too many photos. The first few days immediately following an accident is often when you uncover evidence you may have missed at the actual time of the injury.
Medical documentation is another form of crucial evidence. Request your medical records from every doctor, clinic, and hospital that treated you. Documents you must obtain include:
All of the above are examples of direct evidence. Evidence that's implied or suggested is referred to as circumstantial. Circumstantial evidence may not directly prove the at-fault party's liability, but it can still help shape your claim.
Let's use a car accident as an example. If an injured plaintiff's attorney subpoenas the defendant driver's cell phone records, and sees that texts were being sent at the exact time of the accident, that may help prove the driver's fault; but not necessarily.
Perhaps a passenger was texting on the driver's cell phone at the time of the accident, and the driver was actually paying close attention to the road. On the other hand, if the driver was alone at the time, it would be tough to argue his innocence. Regardless, if no one actually witnessed the driver texting, the evidence is circumstantial.
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