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Evidence Doesn’t Last Forever. The Clock Is Already Ticking on Your Injury Claim

You’ve got to act fast to preserve evidence in injury cases.

While the last thing on your mind when you get seriously hurt is making sure evidence doesn’t get lost, forgotten, or destroyed, that’s exactly what can happen sometimes. It can destroy your case, because the victim has the responsibility to prove fault in causing the injury and the extent of the injuries.

In general, our law says parties have a responsibility to preserve evidence for cases. Sadly, you can’t count on the insurance company to do the right thing. For example, consider a bar owner who has video surveillance set up in his tavern. If there is an allegation his bartender overserved a patron who left the bar and injured someone in a drunk-driving crash, then clearly the owner ought to keep that video footage. But, unless the injured party’s lawyer moves quickly to get that evidence preserved, it’s too easy for the tavern owner to say the video was mislaid, or erased, or recorded over.

Likewise, preserving evidence also can be critical in trucking accident cases, where it can be essential to read data from the black box, the computer that measures certain key events leading up to an accident, including speed and whether the trucker hit the brakes in time. Needless to say, this evidence can be vital to proving fault and possibly even provide evidence justifying punitive damages.

Lawyers have a word for when important evidence is lost or mislaid: spoliation. It’s related to the word “to spoil,” of course, because when evidence is lost your case can be spoiled, just like leftover meatloaf that was mislaid in the refrigerator for a couple weeks.

It’s vital to make sure the insurance company knows you’re looking for this critical evidence as soon as possible. Lawyers know to send a spoliation of evidence letter to the defendant and his insurance carrier when necessary.

Why Is It So Important to Send This Letter as Soon as Possible?

Because in certain cases the data can expire or, even worse, vanish without an explanation. Having this evidence preserved for your case often times helps you prove your case resulting in recovery. If the injured person, through his or her lawyer, can satisfy the court that the other side was unreasonable in preserving material evidence for trial, the jury can be instructed that from this failure they can draw an inference that the lost or destroyed evidence would have been favorable to the plaintiff’s case.

In the most severe cases of lost evidence, where the injured person can show that the other side intentionally destroyed evidence to prevent it from being used in a lawsuit, a judge can strike the defendant’s answer—meaning the injured person does not have to prove their injury was caused by the negligence of the other, and only has to prove the amount they should recover as a result of the other side’s negligence.

The Impact of Lost Evidence Depends on the Specifics of Each Case

It is easier to show certain types of evidence should have been kept for trial, such as medical records, that the law requires be kept in a certain way for a certain period of time. Losing medical records that vanish within the period of time that they should have been kept will almost certainly be considered unreasonable.

In other cases, it may not be as clear. Take, for instance the case we talked about earlier: the bar that overserved a patron. For the sake of discussion, say that the a security camera was programmed to re-record over itself every 30 days. If the bar does not know that a patron leaving their establishment injured another, is it unreasonable to allow the video to re-record over itself? What is the standard bars and restaurants should follow? Unless the bar owner is given notice within 30 days, it’s possible to argue he had no duty to preserve the video recording. At best, you can expect a lot of courtroom arguing over what the bar owner should have known, and the video evidence will still be lost.

One way to guarantee that the owner should have known to save the video is to send a spoliation letter requesting the preservation of such video evidence before 30 days pass. The injured person (or his surviving family, if the accident was fatal) would certainly want this evidence, if the video showed the patron was served drink after drink and was stumbling out of the bar into his car parked right out front while waving to the bartender.

Each case is different, but the following are the types of injury cases where spoliation letters should be sent early:

  • Slip and fall and trip and fall at public places
  • Excessive force by police
  • Dram shop cases
  • Tractor-trailer cases
  • Product liability cases

If you have been injured by the negligence of another, it is important to seek counsel as soon as possible. Time is of the essence. ACT FAST BEFORE IT IS TOO LATE.

Please do not hesitate to contact the lawyers at Holland & Usry at 864.582.0416 or toll-free at 888.230.1841 for your free, confidential consultation.

 

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