You can boost your settlement compensation by collecting compelling evidence of your injuries and proof of the at-fault party’s responsibility.
When you’ve been hurt by another party’s negligence, you have a right to expect fair compensation for your medical bills, lost wages, and pain and suffering.
For most of us, seeking injury compensation means filing a claim with the at-fault person’s insurance company.
A successful injury claim requires good evidence of your injury’s severity along with evidence of the insured’s negligence and liability for your damages.
Here’s how and where to get the evidence you need to prove the at-fault party was responsible for causing your injuries. You‘ll also gather evidence proving the severity of your injuries and the extent of your pain and suffering.
Physical and Circumstantial Evidence
People are injured every day in car accidents, slip and falls, dog bites, and from a variety of other causes. Just as there are plenty of ways for people to get hurt, there are different kinds of insurance policies that pay injury claims:
- Auto insurance
- Homeowner’s insurance
- Business liability insurance
- Boat and off-road vehicle insurance
- Medical malpractice insurance
No matter the type of insurance, the claims adjuster won’t offer you a settlement unless you have evidence proving their insured was responsible for your injuries.
Collecting Physical Evidence
Physical evidence is something you can see and touch, such as:
- Medical records
- Witness statements
- Police reports and incident reports
- Torn and bloodied clothing
- Public records, including driving records
- Your written narrative of the accident
Look for Circumstantial Evidence
Evidence that’s implied or suggested is called “circumstantial.” Circumstantial evidence may not directly prove the at-fault party’s liability, but it can still help shape your claim.
Let’s say a college student ran a red light and violently crashed into the side of your car, leaving you with severe injuries.
You’ve retained a personal injury attorney who issued a subpoena for the at-fault driver’s cell phone records. The cell phone records are physical evidence that proves texts were sent at the exact time of the accident.
If the driver was alone in the car, the cell phone records are proof the driver was negligently texting while driving.
On the other hand, if there was a passenger in the car, the cell phone evidence against the driver is circumstantial. After all, it may be the passenger who was texting on the driver’s cell phone at the time of the accident.
Additional evidence, like a witness statement, can confirm the driver was texting at the time of the accident, but the circumstantial evidence alone may help convince a jury that the driver was distracted.
Prevent Spoliation of Evidence
Sometimes evidence that could be critical to your injury claim or lawsuit might be lost, altered, discarded, or otherwise “spoiled.” The legal term is “spoliation of evidence.”
Spoliation can happen accidentally or intentionally. To make sure important evidence is preserved for your injury claim, you or your attorney will send a “spoliation letter” to the business or person who has custody of the evidence.
The spoliation letter puts the at-fault party on notice to preserve the evidence without alterations. The letter also makes it harder for them to argue the evidence was destroyed accidentally or in the normal course of business.
Evidence to preserve can be anything from emails and computer records, to surveillance camera film, to the restaurant chair that collapsed and threw you to the floor.
If you don’t have an attorney, you can add spoliation language to your notification letter, which lets the at-fault party know you intend to pursue an injury claim.
The spoliation language should describe the evidence to be preserved and make it clear that a lawsuit has been filed or may be filed if needed to resolve your claim.
Sample: Spoliation Language
This type of language may be inserted in your notice of claim letter:
Additionally, this letter will serve to provide you with notice that in anticipation of litigation you have an obligation to appropriately preserve and retain any items or information that may be relevant to my claim.
This includes, but is not limited to, furniture or equipment that was involved in the incident, 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, or modify evidence in any manner. Disregarding these obligations may be considered spoliation of evidence.
YOU ARE HEREBY PUT ON NOTICE NOT TO DISPOSE OF, ALTER, MODIFY OR REMOVE THE ABOVE MENTIONED EVIDENCE, OR ANY OTHER RELATED RECORDS.
If evidence is destroyed, there’s not much you can do about it outside of a courtroom. If your case does go to trial, your attorney will ask for the jury to be instructed to assume the missing evidence would have helped prove your case.
How to Gather Vital Evidence
Just about every injury event presents a limited window of opportunity for collecting important types of evidence. There’s no better time than immediately after the accident happened. That’s when the evidence is fresh and most accessible. Once that window closes, evidence becomes more difficult to come by.
Photographic Evidence Doesn’t Lie
Do your best to take photos at the time of the incident. Use your cell phone or digital camera to take photographs and video of the surrounding area, including:
- Abrasions, lacerations, or contusions to your body
- Damaged clothes, especially if bloodied and torn
- The incident scene and surrounding area
- What caused your injury
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.
Traffic Accidents: Taking photos is critical after a car accident. 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. Ask management to save any surveillance footage from the day of your injury 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 a product burned you, keep the clothing you were wearing at the time, especially if the clothing was burned.
Get Witness Information Quickly
Witness statements can be powerful evidence. Independent, third-party witness statements carry a lot of weight with insurance adjusters because the witness has no personal or financial interest in your claim.
Witnesses can also provide evidence you may have overlooked at the time of the injury. For example, a witness might have overheard the at-fault driver say he didn’t see you or was texting right before the accident.
Critical information from an independent witness can be strong evidence of the at-fault party’s negligence.
After a slip and fall injury, staff will often hurry to clean up the spill. A witness may be able to confirm that the substance was on the floor. Another may have previously reported the spill to management, but they ignored it. A witness may also be able to confirm seeing you in severe pain right after the injury.
Witnesses can provide convincing evidence of injury and fault that can substantially increase the value of your claim. Bystanders have no legal obligation to stick around, so try to get witnesses’ information quickly, before they leave the scene.
Return to the Scene as Soon as Possible
Return to the accident scene to gather additional evidence as soon as possible. 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.
If you’re in no condition to investigate the scene of your injury, ask a trusted friend or family member to go look around, take pictures, and make detailed notes about what they see.
Be prepared to take more photographs and videos of the scene, especially if the accident happened at night and you are returning in daylight.
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 Records are Essential to Your Claim
Without documentation of the type and extent of your injuries, you won’t get far with your insurance claim. Copies of your medical records and bills are the most important evidence of the injury you can gather.
After an injury, you must seek immediate medical care. Be sure to tell every medical provider you see exactly how and when you were injured, so your medical records will point to the cause of your injuries.
Your treatment records connect your injuries to the accident and prove the severity of your injuries.
Medical records can include:
- Paramedic reports
- Emergency room admitting charts
- Doctors’ and nurses’ notes
- Test and exam results
- Your physician’s diagnosis and prognosis
The value of your injury claim will be calculated based on the total of your medical bills. You must be sure to include copies of every single medical bill and all receipts for related out-of-pocket expenses in your accident file.
Be careful not to overlook medical bills and expenses, for example:
- Separate bills for X-rays, CT Scans or other imaging tests
- Additional bills from the radiologists who interpreted each test
- Emergency room bills from the hospital
- Separate bills from the emergency room physician who treated you
- Out-of-pocket expenses for bandages, medications, and crutches
- Related costs like cab fare or parking fees for your medical visits
Evidence of Pain and Suffering
If you’ve fully recovered from relatively mild injuries, you can probably negotiate a fair settlement directly with the insurance company. You can reasonably ask for one or two times the amount of your medical bills to compensate for your pain and suffering.
The dollar value of pain and suffering in severe injury claims can easily be as much as five times the amount of the total medical expenses. But you can’t get high-dollar settlements on your own.
Severe injury claims require extensive evidence of injury and a skilled personal injury attorney who knows how to use it to your advantage.
Aside from medical records documenting obviously painful injuries, you can use dated and descriptive notes as evidence of the pain, suffering, and emotional distress caused by your injuries.
Keep a dated journal or diary to write about:
- Daily pain levels
- Unpleasant side effects of injury-related medications
- Sleep disturbances
- Nightmares and bad dreams
- Humiliation from needing help with eating, getting dressed, bathing, or using the toilet
- Loss of ability to care for children or another dependent
- Financial worries
- Post Traumatic Stress Disorder (PTSD) symptoms
Video: How to Collect Evidence
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