The success of your claim depends on convincing the adjuster that your settlement demand is appropriate for the injuries you suffered. When negotiating insurance settlements, you need to show the adjuster that her insured’s negligence was the sole cause of the accident.
You do this by sending copies of your evidence (medical charts, bills, the police report, witness statements, etc.) to the claims adjuster. The adjuster presumes these supporting documents are truthful, and they’re considered self-evident.
Showing Negligence vs. Proving Negligence
Showing the other driver was negligent is much different than proving it. The legal burden of proof you’re familiar with only applies in a formal lawsuit.
Proving the other driver was negligent becomes necessary when negotiations break down, and you’re only option is to file a lawsuit. Once a lawsuit is filed, everything changes. In a trial, you won’t be able to just show a jury your evidence; that won’t be enough. Instead, you’ll have to prove the documents are legitimate, relevant, and accurate.
Common law, which consists of previous cases and court decisions, requires a plaintiff to prove his damages in order to prevail in trial. In court, you have to prove your damages by a preponderance of the evidence. If you can’t get over that legal burden of proof, you will lose your case.
Proof By a Preponderance of the Evidence
Proof by a preponderance of the evidence is the burden you must meet to win a civil trial, such as a personal injury trial. When settlement negotiations break down, and you start to consider filing a lawsuit, you must start thinking about proving your case in this way.
“By a preponderance” basically means, “by a majority.” It can be explained using the scales of justice as an example. When a trial begins, the scales are empty. Each side of the scale is equal, 50 percent for the defendant and 50 percent for the plaintiff. In the eyes of the jury, neither side is at-fault.
At the end of the trial, if the jury believes your evidence is at least 51 percent stronger than the defendant’s evidence, you will have met your legal burden of proof and won your case. The jury will think the weight of proof falls in your favor.
Proof Beyond a Reasonable Doubt
Don’t confuse proof by a preponderance of the evidence with proof beyond a reasonable doubt. Proof beyond a reasonable doubt is the legal measure used in criminal trials. It has nothing to do with civil trials.
In criminal cases, the law says the scales must be 99 percent in favor of the prosecution. If the jury believes the prosecutor’s evidence is 99 percent stronger than the defendant’s evidence, the prosecutor wins and the defendant is convicted. For anything less than 99 percent, the defendant must be found not guilty.
Always Act “As If”
In the event your injury claim can’t be settled, you’ll need to already have the proof needed to convince a jury. Never take for granted you’ll reach a settlement with the insurance company. Throughout negotiations, always act as if you will end up in trial.
Acting “as if” will not only help you if a trial becomes necessary, but will also give you an advantage during settlement negotiations. The more effort you put into gathering strong evidence, the better you will position yourself in negotiations, and the more likely you will get a substantial settlement without the need for trial.
A Trial is a Fresh Start
Personal injury trials are “de novo” proceedings. In other words, they’re a fresh start. All the copies of evidence you showed the adjuster during settlement negotiations will be inadmissible in court. A judge and jury need to see the verified, original evidence.
A claims adjuster can work with simple copies of your medical records, bills, witness statements, police reports, etc. But if settlement negotiations break down, and you have to file a lawsuit, those simple copies won’t be enough. Your evidence must be verified, in one way or another, to be admitted at trial.
Examples of Credible Evidence for Trial
- Police reports – You must have the responding police officers’ names, badge numbers, and any other contact information you can get. Too often, when police officers create their reports, their signatures and badge numbers are illegible. You must be able to get a hold of them quickly if you need them to testify.
- Medical records – Check your medical charts for signatures of doctors, chiropractors, nurses, orderlies, and any other hospital employees who had anything to do with treating your injuries.
- Witness statements – You must have all your witnesses’ names, addresses, and phone numbers. Try to find out if they have a criminal record, which would damage their credibility on the witness stand. Strong, independent witness testimony will often make the case for an injured plaintiff.
- Lost wages verification – A basic letter from your employer detailing how many days you missed, and how much pay you lost, isn’t enough for trial. See if you can get copies of actual pay stubs or timecards. Also make sure you can contact the supervisor who signed the lost wages letter. She may need to testify on your behalf.
- Expense receipts – An adjuster may be satisfied with simple copies of receipts for medications, bandages, crutches, etc., but a jury may not. Try to get the original receipts, or duplicate receipts from the vendor where possible. Be sure the receipts are clearly dated.
- Keep all other evidence related to your injury, even if the adjuster didn’t ask for it, or you decided it wasn’t important enough to send to her. You’ll need all the evidence you can get to help meet your legal burden of proof at trial.
Negotiating insurance settlements is one thing, but once the claim goes to trial, the more proof you can gather, the better your chances of winning.
Get a Lawyer
Even your best-prepared and verified evidence may not be enough. At trial, in any court other than small claims, the insurance company’s attorneys will have a chance to cross examine not only you, but your witnesses, the police officers, your employer, and any others who supported your case.
Moreover, if your evidence isn’t properly prepared for trial, the defendant’s attorneys might be able to convince the judge not to admit it. That decision could devastate your case.
If you can’t negotiate a fair settlement with the insurance company, it’s strongly advised you retain a licensed personal injury attorney to file suit on your behalf. In a district or circuit court, there are simply too many complex legal procedures for you to navigate on your own.
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