Key evidence can make or break your personal injury claim. See where to get the evidence you need and how it will help your case.
There are two vital parts to winning a personal injury case. First, you must prove the at-fault party was negligent. Second, you must prove their negligence caused your injuries.
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 the injury claim process or begin gathering evidence. Saving tangible items, taking pictures of evidence you can’t save, and sending the at-fault parties a spoliation letter are all actions you can take to get the types of evidence you need to win.
Types of Evidence You’ll Need to Win Your Case
Insurance adjusters are more likely to offer a higher settlement when you have strong evidence on your side. The adjuster doesn’t want to risk it being used in court and seen by jurors.
Winning injury claims have a combination of physical evidence and documentary evidence.
1. Physical Evidence
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, touch, or visibly see before them. Jurors can observe evidence such as bloody clothes, a tripping hazard, or scars from injuries.
- Photographic evidence can include surveillance videos from a slip and fall, pictures of a car accident scene, and photos of your injuries.
Print copies of your photos on quality paper and write the essential details of each image on the back with a pen.
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
Keep the original photos in your accident claim file. If you hire an attorney, they will need these pictures. Always keep your original prints. You can make copies to share, or send digital copies of your photo and video files.
2. Documentary Evidence
Documentary evidence is written or printed information about your injury. The specific type of documents will depend on the type of claim you file and your injuries.
Documentary evidence can include:
- Medical records and bills
- Police reports
- Incident reports
- Proof of lost wages
- Your injury journal detailing what happened, your pain and emotional distress
- Auto repair shop invoices
- Any other documented proof of your injuries or the damages you suffered
Never mark up the original copy of any documents. Make copies to write on or share as needed. Organize your paperwork to make it easier to find information when you need it.
How to Gather Physical Evidence
Whether you decide to handle your own claim or hire an attorney, you can gather and protect evidence that may be in the possession of the at-fault party.
Ideally, you or someone on your behalf should start gathering physical evidence at the scene immediately after the incident.
If not, return to the scene of the accident as soon as you can. The observations you make might surprise you. Depending on the type of accident, you might notice a tripping hazard or a traffic light that needs repair. Record video or take pictures of the entire area.
Even if taking pictures of every detail doesn’t seem relevant now, it might be later. If you decide to hire a lawyer, they will want as much evidence as possible to prove your case.
Safety is your number one priority. Never 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.
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 won’t be damaged or destroyed.
Never give original evidence to the insurance company. A picture or copy of your evidence will let the adjuster know you can prove your case.
Photographic Evidence for Different Case Types
Whether you were in a motor vehicle accident, slip and fall accident, attacked by a dog, injured by a defective product, or something else, photographic and video evidence can help validate and increase the value of your claim.
Take photos and video of the accident scene from as many angles as possible. If you’re physically unable to take pictures, you can ask someone with you, such as a friend or family member.
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 photoshopped picture to make your entire claim look suspicious.
After a motor vehicle accident, take pictures of:
- Damage to all vehicles, including broken glass and scattered parts
- Damage to other objects such as trees or street signs
- The area around the car crash, including fresh skid marks
- The position of the vehicles immediately after the accident
- Personal property damage to clothing, luggage, or jewelry
- Current weather conditions
After a slip and fall accident, take 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
After a dog attack, take pictures of:
- The dog and its owner
- The location where the bite occurred
- Anything the owner did to contain the dog, such as a leash or fence, especially if it’s broken
- Your bloody or damaged clothing
After getting injured by a defective product, take 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 damage to your clothes, such as burns or tears
Pictures of Your Injuries
No matter the circumstances, 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 taking pictures every few days to document your healing. If you suffer any complications during healing, such as an infection, take photographs to prove it.
Stopping the Destruction of Evidence
You can easily 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. For example, an at-fault business owner may have camera footage or business records that can help your claim. They likely won’t hand those over just because you ask.
Spoliation refers to evidence that has been spoiled, meaning damaged, destroyed, or lost by accident or intention.
There is always a risk that key evidence in your claim could be lost, altered, or discarded before you can access it. 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 simply because you request them.
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 is to send a spoliation letter to the party that has it 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.
Send the letter as soon as possible to the at-fault party. If you have contact information for their insurance company, send them a copy too. 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.
Send each letter certified mail, return receipt requested to confirm the other party received your letter. When the green card comes back, attach it to your copy of the letter.
A spoliation letter notifies the party with 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.
Sample 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.”
What to Do If Evidence is Destroyed
There’s not much you can do outside of a courtroom about the destruction of evidence. However, if your personal injury lawsuit goes to trial, your attorney can request the jurors be instructed to assume the missing evidence is in your favor.
Or, the court may sanction the party who destroyed the evidence, as in the case of Ballard v. Walmart, where a federal judge determined Walmart willfully destroyed surveillance film of Ms. Ballard’s slip and fall in the store.
How Good Evidence Will Help Your Injury Claim
A successful personal injury claim includes several types of evidence. Injury victims with weak or no evidence might only be able to get a nuisance value payout for their claim, or their injury claim will be flatly denied.
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.
Proving the At-Fault Party’s Liability
No insurance company will pay a claim without strong evidence that their insured was negligent. In most cases, the burden of proof falls on the victim. It’s up to you to provide enough evidence to establish the at-fault party’s liability for your damages.
Examples of evidence of fault:
- The police accident report listing the blood alcohol content of the driver who hit you
- Witness testimony from a customer who reported a spill in the soap aisle thirty minutes before your slip and fall
- Prior building code violations issued to the landlord where you fell down rickety stairs
- Pictures of the dog owner’s dilapidated fence where the dog that bit your child got out
Evidence to Support Your Damages
Even when the insurance adjuster accepts liability for their insured, the adjuster may challenge your injuries and treatment costs. Some evidence of your damages you can gather on your own.
In severe injury cases, your attorney may hire medical or financial experts to provide additional evidence and testimony.
Examples of evidence to support your damages:
- Medical treatment records on the day of the incident linking your injuries to the event
- Diagnostic reports (X-ray, CT, or MRI scans) verifying bulging discs, broken bones, etc.
- Medical bills and receipts for out-of-pocket medical expenses
- Physician records to justify the amount of time you were off work
- Your injury diary and statements of caregivers to support your pain and suffering claim
- Expert testimony regarding the permanence of your injuries
Collecting and 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.
There’s no upfront cost to get good legal advice. Most personal injury attorneys offer a free consultation 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.
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