Preserving Injury Evidence Is Vital to Your Insurance Claim

Preserving key evidence can make or break your injury claim. See how to preserve your evidence as well as evidence still held by the at-fault party.

Gathering and preserving evidence for a personal injury claim is a crucial step in building a solid case.

Without evidence, it will be impossible to prove that the other party’s actions caused your injuries. If you cannot prove their fault, you won’t receive a fair settlement or court award.

You don’t need an attorney to start collecting valuable evidence. Saving tangible items, taking pictures of those items you cannot save, and sending the at-fault parties a spoliation letter are all actions you can take to preserve evidence.

Injury Claims Require Evidence

In a personal injury case, the injured party has the burden to prove the facts of the case with a preponderance of the evidence, meaning you have enough evidence to convince the claims adjuster or a jury that there is a better than 50 percent chance your claim is valid.

A successful personal injury claim includes several pieces of evidence. Without the right evidence, the injured party or their attorney cannot prove that they have an injury. They will also not be able to prove that the injury was a result of the actions or inactions of someone else.

Injury victims with weak or no evidence might only be able to get a nuisance value payout for their claim, or might not receive a dime.

Severe or complicated injury claims should be handled by an experienced personal injury attorney to maximize the victim’s compensation. 

An attorney can help you identify, collect, and preserve crucial pieces of evidence, even evidence you don’t have in your possession. If you decide to negotiate your own insurance claim, physical evidence is still necessary for a successful settlement.

The Two Types of Physical Evidence

Generally, physical evidence is evidence that people can see and touch.  There are typically two types of physical evidence – tangible and photographic.

Insurance adjusters are more likely to agree to a higher settlement when you have strong evidence on your side. The adjuster doesn’t want to risk your evidence being used in court. If your case goes to trial, physical evidence allows jurors to see and observe how the accident occurred and the extent of your injuries.

Tangible evidence is something that the jury can directly interact with, visibly see before them, or touch. Jurors can observe evidence such as bloody clothes, a tripping hazard, or scars from injuries.

Photographic evidence is evidence that you cannot otherwise keep or practically preserve, like pictures of a car accident scene or photos of your injuries. Video footage also falls under this category.

Documentary Evidence is Crucial

Documentary evidence is different from physical evidence but no less crucial to a personal injury claim or lawsuit.

Instead of showing the physical damage related to the claim, it supports other important facts through official documentation.

The documents you’ll need to collect will depend on the type of claim you file and your injuries. Some evidence can be both physical and documentary. For instance, a surveillance video showing your slip and fall at the grocery store is both documentary evidence and photographic physical evidence.

Documentary evidence can include:

How to Gather Physical Evidence

Whether you handle your claim or hire an attorney, you can help ensure that evidence remains accessible and is in the best condition possible.

Physical evidence regarding your claim can come from a variety of sources, starting with the scene of the injury.

You or someone on your behalf should gather and begin preserving physical evidence as soon as possible. Ideally, someone should collect evidence at the scene immediately after the injury-causing incident.

If not, return to the scene as soon as you can. The observations you make might surprise you. Depending on the type of accident, you might notice a tripping hazard, a traffic light that needs repair, or a hole in a fence where a dog got out. Record video or take pictures of the entire area.

Even if taking pictures of everything doesn’t seem relevant now, it might be later. If you decide to hire a lawyer, they can determine what evidence will prove your case.

Safety is your number one priority. Do not attempt to collect evidence if you need medical care, or if the area is unsafe.

Do what you can to preserve physical evidence exactly as it was at the accident scene. If you can’t safeguard the actual item, take photographs of it.

Relevant evidence will be different from one case to the next, especially in different types of accidents.

Examples of tangible items to collect include:

  • Bloody, burned or damaged clothing and shoes
  • Broken jewelry
  • Broken eyeglasses
  • A defective product and its packaging, purchase receipt, warranty, and instruction manuals
  • Other damaged personal items or damaged items at the scene

Tangible items should be kept in sealed bags to preserve their post-accident state. Label the bag with a permanent marker, identifying what it is, how it relates to your case, and the date. For example, “Ripped and bloody jeans from a dog bite on June 21, 2020.

If there are witnesses who can give an account regarding the piece of evidence, write their name and contact information on the bag as well.

Keep a log of these items and store them in a secure place where they are unlikely to be damaged or destroyed.

Never hand over original evidence to the insurance company. A picture or copy of your evidence will let the adjuster know you can prove your case.

Preserving Photographic Evidence

Whether you were in a motor vehicle accident, slip and fall accident, experienced a dog bite, sustained an injury from a defective product, or something else, photographic and video evidence can help validate and increase the value of your claim.

Some pieces of evidence will not be available in their present state to show the at-fault party’s insurance company, your attorney, or a jury. Current technology makes it possible to take pictures and videos, no matter where you are. Use this convenience to your advantage.

Use your cell phone or camera to take photos and videos of the accident scene from as many angles as is safely possible.

Different settings on the camera might make photographic evidence better to see and understand, but you must never edit or alter a photograph. It only takes one photo-shopped picture to make your entire claim look suspicious.

If you’re physically unable to take pictures, you can ask a friend, family member, or someone else who is with you.

Make sure your camera or smartphone puts a time stamp on the images.

Different accidents require different pictures or videos as evidence. When deciding what to capture, think about what a reasonable individual would need to see to understand your accident and believe your injuries.

If you were in a motor vehicle accident, try to get pictures of:

  • Damage to any involved vehicles, including broken glass and scattered parts
  • Damage to other objects such as trees or street signs
  • The area around the accident, including fresh skid marks
  • The position of the vehicles immediately after the accident
  • Damaged or destroyed personal property such as clothing, luggage, or jewelry
  • Current weather conditions

If you had a slip and fall accident, try taking pictures of:

  • The area where you fell, from your perspective
  • Anything that could have led to your fall, such as broken stairs, a wet floor, or loose carpeting
  • Your clothing and shoes
  • Damaged personal property, like eyeglasses, watches, or handbags
  • Fallen merchandise

If you were the victim of a dog bite, try to take pictures of:

  • The dog
  • The dog’s owner
  • The location where the bite occurred
  • Anything that the owner did to contain the dog such as a leash or a fence, especially if it’s broken or defective
  • Your bloody or damaged clothing

If a defective product caused your injuries, try taking pictures of:

  • The defective product’s condition immediately after the malfunction
  • The surrounding area if the injury also caused physical damage to your home or car
  • Any damages to your clothes such as burns or tears

Pictures of Your Injuries

No matter the circumstances surrounding your injury, always take pictures showing your physical injuries. If possible, take them before and after you receive initial medical care. If you have surgery or other medical procedures to help your injuries heal, take pictures before and after.

Continue to take pictures every few days or once a week to document your healing. If you suffer any complications during healing, such as an infection, take photographs that show them.

As soon as you can access a computer, transfer your photo and video files to the computer for safekeeping. You may even want to make a backup copy on a flash drive or something similar.

Print copies of your photos on quality paper. Office supply stores can help you choose the best paper and can even print your pictures for you.

Once you have the printed pictures, write the essential details of each image on the back with a pen or permanent marker.

Write on the back of the picture:

  • A description of the photo
  • The date the photo was taken
  • Who took the photo
  • The location where the photo was taken

These are your original copies to keep in your accident claim file.

If you hire an attorney, they will need these pictures. Hold onto your original printed copies. You can print copies to share, or send digital copies of your photo and video files.

Prevent Spoliation of Evidence

You can protect and preserve the evidence in your possession, but there may be important evidence that is still under the control of the at-fault person or business.

Spoliation of evidence refers to evidence that has been damaged, destroyed, or lost by accident or intention.

There is always a risk that convincing evidence in your claim could be lost, altered, discarded, or spoiled in some other way before you can access it. The at-fault party won’t hand over camera footage or business records that can help your claim without a subpoena.

For example, if you fall in a grocery store, the store won’t hand over copies of surveillance footage, or if you think the driver who hit you was texting, the driver won’t produce their phone records just because you ask.

You’ll probably need an attorney to arrange for a subpoena. In the meantime, you can put the at-fault party on notice of their obligation to preserve evidence relevant to your case.

Send a Spoliation Letter

One way to help preserve evidence that’s not in your possession is to send a spoliation letter to the party who has the evidence in their custody. If you hire an attorney, they will send out all the necessary notifications on your behalf.

If you decide to handle your own injury claim, you’ll need to act fast to protect important evidence. The easiest way is to include spoliation language in your notification of intent to file an injury claim.

Your letter should be sent as soon as possible after the incident causing your injury. Failure to promptly send this letter could result in evidence spoliation before the at-fault party receives your letter.

You should send a spoliation letter to everyone involved in your case, including all at-fault parties and their applicable insurance companies. You don’t have to know for sure what kind of evidence might support your claim, but make the letter specific to your case regarding what evidence needs preserving. For example, ask for surveillance films taken on the day of your injury, and all electronic records related to your injury.

Send each letter certified mail return receipt requested so that you can confirm the other party got your letter. When the green card comes back, attach it to your file copy of the letter.

A spoliation letter notifies the party who has the evidence that they need to preserve it and not alter it in any way. Once they receive this letter, it is difficult for them to claim that the evidence was accidentally destroyed or changed in the course of normal business.

You can request preservation of any kinds of evidence, including: 

  • Emails
  • Computer records
  • Surveillance videos
  • A restaurant chair that collapsed
  • Machinery
  • A vehicle

Example of Spoliation Language

This letter will serve to give you notice that in anticipation of litigation, you have a duty to properly preserve and retain any and all evidence that could be relevant to my injury 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, handwritten notes or reports, electronically stored information and metadata, as well as any data relating to the use of any cell phones, emails, or other communication devices, and all other evidence relating to the incident, which is currently in your custody, or the custody of your employee or agent.

Please ensure this letter is given to the appropriate person in your office who is responsible for the custody of evidentiary items concerning this incident. You must not dispose of, alter, or modify evidence in any manner.

Failure to preserve this material will be cause for a request of a spoliation instruction at any trial in this matter. A court may ultimately consider it as an attempt to destroy evidence.

If you fail to secure, maintain, and preserve these important pieces of evidence appropriately, it will give rise to the legal presumption that the evidence would have been harmful to your side of the case, and we will seek any sanctions available under the law.

YOU ARE HEREBY PUT ON NOTICE NOT TO DISPOSE OF, ALTER, MODIFY OR REMOVE THE ABOVE MENTIONED EVIDENCE, OR ANY OTHER RELATED RECORDS.

There’s not much you can do outside of a courtroom about the destruction of evidence that’s not in your custody. However, if your case goes to trial, your attorney can request the jurors be instructed to assume the missing evidence is in your favor.

Preserving evidence is one of the most important tasks when preparing a personal injury claim. You can do this on your own, or you can talk to an attorney.

Most personal injury attorneys offer free initial consultations and are willing to work on a contingency fee basis.  In other words, your attorney only collects money from you if they settle your claim or win your case at trial.

There are no upfront costs and nothing to lose by getting a legal opinion. Gather any evidence you have and meet with an experienced attorney as soon as possible.

How Much is Your Injury Claim Worth?

Find out now with a FREE case review from an attorney…

  • Your Accident
  • Your Claim
  • Contact Info
  • Your Evaluation
Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>