Meet your burden of proof like a pro. Learn how compelling evidence can prove your injury case to the insurance adjuster or a court jury.
When someone else is responsible for your injuries and property damage, you have the right to seek compensation for your financial losses and pain and suffering.
For most of us, that means filing a claim or lawsuit against the at-fault party’s insurance company.
Personal injury claims are filed against the at-fault party’s auto, business, or homeowner’s insurance policy.
No matter what kind of insurance claim you make, the burden is on you to prove the insured was to blame for your injuries and property damage.
Most injury claims are settled out of court, but we’ll show you the evidence you’ll need to take your claim all the way to trial, if necessary.
The Burden of Proof for Injury Cases
The person who files an injury claim or lawsuit has the “burden of proof,” meaning the obligation to prove their claim.
The person accused of wrongdoing doesn’t have to prove anything. In or out of court, they are assumed innocent unless you prove otherwise.
Weight of Evidence for Criminal and Civil Cases
Your burden of proof, also called the weight of evidence, depends on whom you’re trying to convince.
Criminal cases have the biggest burden of proof. In a criminal case, the government claims the defendant broke the law. The government must convince a criminal court jury that the accused person is guilty “beyond a reasonable doubt.”
Injury claims that end up in court are civil actions, not criminal. If you file a lawsuit seeking compensation for your injury damages, you’ll have to convince a civil jury or a small claims court judge with a preponderance of the evidence, meaning a majority of evidence.
A preponderance of the evidence does not always mean you have more evidence than the other side. It can also mean having better, more compelling evidence.
Similarly, if you file a claim with the at-fault person’s insurance company, you’ll need a preponderance of evidence to convince the claims adjuster your claim is valid.
Prepare Injury Claims “As If” For Trial
Most injury claims are settled out of court by showing the adjuster proof of their insured’s negligence and evidence of the victim’s injuries.
In the event your injury claim can’t be settled, the next step is filing a lawsuit. If you get to this point, you should already have the proof needed to convince a judge or jury.
Hiring a personal injury attorney may be all it takes to get a fair settlement. The last thing an adjuster wants is a lawsuit.
Never take for granted you’ll settle with the insurance company. Throughout negotiations, always act as if you will end up in a trial.
The same type of evidence gathered for an insurance claim is necessary to win a lawsuit. However, for litigation, your attorney will add verification that your evidence is legitimate, relevant, and accurate.
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 your position will be in negotiations, and the more likely you’ll get a fair settlement without the need for a trial.
Proving Negligence in Your Claim
Winning your claim depends entirely on proving that the at-fault person or business was to blame for your injuries.
You’ll have to convince the adjuster their insured was negligent, meaning they did something wrong or failed to do what any reasonable person would do in that situation.
There are four elements of negligence needed to move your claim forward. The four elements are like the four wheels on a car. You won’t get far if you’re missing a wheel.
The Essential Four Elements of Negligence:
- Duty of Care: The at-fault party had a duty of care to avoid causing you harm. For example, a driver has a duty to drive safely and avoid accidents.
- Breach of Duty: The at-fault party breached their duty by doing something wrong or failing to do what any reasonable person would do in the same circumstances. A driver breaches their duty by texting while driving or running a red light.
- Causation: The at-fault party’s breach of duty is the proximate cause of your injuries. If the distracted driver hadn’t run the red light and slammed into your car, you wouldn’t have been injured.
- Damages: You have confirmed injuries, supported by medical bills and records, and other proof of damages.
Negligence is Key to Proving Liability
Negligence and liability go hand-in-hand, whether you’re in court or dealing directly with the insurance company. Establishing liability means the other person is obligated to pay for your monetary losses and emotional distress.
If the insurance company says you share some of the liability, you’ll need to know if your state has contributory or comparative negligence laws that might hurt your claim.
Depending on your location and the circumstances of your injury, you may be able to establish liability without proving negligence, for example:
- In some states, a homeowner is “strictly liable” for dog bite injuries, even if the owner wasn’t negligent.
- A third party may have “vicarious liability” for your injuries, like the company that employed a truck driver who rear-ended your car.
Learn more with our Guide to Understanding Liability in Personal Injury Claims.
Gather Evidence to Prove Your Injury Case
Building a strong insurance claim starts at the scene of your injuries. As you gather evidence, collect and organize it as though you’re getting ready for a court trial.
The insurance adjuster will pay more to keep you from filing a lawsuit when they see you’re prepared to present a strong case in court.
Organize Your Paperwork
An organized accident file is important. Your file will contain original documents related to your injury claim, including any correspondence with the insurance company.
Make copies to share with the adjuster and don’t write on the originals. Unmarked letters and documents should be safely stored in your accident file.
Equally important is keeping good notes on the cause of your injuries, medical treatment, and recovery. Your notes can be compelling evidence of your pain and suffering.
Evidence to prove your injury case can include:
Police Report: Car accidents involving injuries are usually investigated by local law enforcement. Obtain an official copy of the police report that includes the responding officers’ names and signatures. Be sure you have a “final” copy of the report. For example, accidents caused by DUI may be amended later to include the at-fault driver’s blood alcohol level.
Photographs and Video: Take as many photos and videos as you safely can at the scene of the accident, including pictures of your injuries. Continue taking pictures of your visible injuries as you recover. Your attorney can obtain footage from nearby surveillance cameras through a subpoena.
Medical Records: Tell the medical providers who treat you exactly when, where, and how you came to be injured. Your medical records must tie your injuries to the accident caused by the at-fault party. Doctor’s notes and other records should be dated and signed.
Witness Statements: Strong, independent witness testimony will often make a case for an injury victim. You’ll need the witnesses’ names, addresses, and phone numbers. Written statements should be dated and signed by the witness. For a lawsuit, your attorney may depose the witness under oath to verify their testimony.
Injury Diary: Taking good notes after an injury is an effective way to support your claims for pain, suffering, and emotional distress. Dated entries can document pain levels, nightmares, and your inability to perform activities of daily living. Don’t put anything in your notes you wouldn’t want a jury to see. Your diary can be called into evidence.
Lost Wages Verification: Ask your employer for a signed statement detailing how many days you missed and how much pay you lost. Support the wage loss statement with copies of previous pay stubs or income tax records. For a court case, your employer may be asked to testify or provide an affidavit (sworn statement) of your lost wages.
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 submit to the insurance company.
When You Need an Attorney to Prove Your Case
If you’ve fully recovered from minor injuries, you can probably settle your claim directly with the insurance company for a fair amount of compensation.
When your claim is complicated, or you’ve suffered severe injuries, you’ll need the help of an experienced attorney to prove your injury case.
Complicated cases can include:
- Shared blame
- Pre-existing injuries
- Multiple-vehicle accidents
- Permanent injuries
- Injury claims against the government
Insurance companies are notorious for offering low settlements to severely injured claimants who aren’t represented by an attorney.
No matter what you’ve done to meet your burden of proof, the adjuster knows that when they make their “final offer” you probably won’t have the energy or experience to fight for more money.
Don’t settle for less. Most personal injury attorneys offer a free initial consultation to review your case. There’s no cost to find out what a good attorney can do for you.
Video: Burden of Proof for Injury Claims
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