Posted On 01.23.13 by in Blog
One reason why many personal injury victims should quickly contact a lawyer is to help identify and secure evidence that is important to the case. In some situations, this will be general evidence that may come with a deadline. Calling witnesses (who can move or change phone numbers), securing red light or speed cameras (which may be unavailable after a short time), and obtaining surveillance video (which is often recorded over within 30 days). That evidence, if not quickly preserved, will not be available. That evidence can mean the difference between winning a lawsuit and losing it.
Sometimes, though, crucial evidence is in the hands of the negligent entity. In a slip-and-fall case, there may be surveillance video that recorded the scene of the accident. For a serious automobile collision, the defendant’s car may be totaled and quickly scrapped. This evidence can be lost if not quickly preserved. Waiting a month or a year to hire a lawyer might be too long.
When our lawyers identify important evidence that may be in the control of a potential defendant, we immediately send a certified letter (return receipt requested) to that person or corporation outlining our request and their duties with regard to the evidence. The exact contents of the letter must be tailored to the case (for example, do you need to preserve electronically stored information, a piece of physical evidence, or something else?). Here is one example:
Our firm represents John Doe in a claim for personal injuries on January 1, 2013 against your company. As you know, Mr. Doe was a guest in your grocery store around 11:00 p.m. when he slipped and fell on ice and water near the bagged ice freezer at the front of your store. Your employees helped move him to the side, and he was taken by ambulance to the hospital where he was diagnosed with a broken leg.
We request that you preserve all evidence related to Mr. Doe’s fall and the conditions of the store immediately before and after that fall. In particular, please identify and save all information, documents and photographs, including but not limited to the following materials:
Thank you. Please note that your failure to preserve any of this evidence may be used against you in trial, and may result in a spoliation instruction.
Spoliation is a legal term meaning the intentional destruction of evidence which permits a judge or juror to infer that the evidence destroyed was unfavorable to the destroying party. It also deals with the tampering of evidence—in medical malpractice cases, we sometimes see doctors who alter medical records to attempt to cover up their negligence.
In order to prove spoliation, it is important to show that the holder of the evidence knew or should have known that the evidence was important, and either intentionally or negligently destroyed or altered the evidence. If you can show that, the factfinder (judge or jury) is permitted to use that destruction or alteration as evidence of guilt. In serious cases, it can also lead to default judgment—an automatic win for the side which requested the evidence.
Here is a common instruction given to Maryland juries where spoliation is an issue:
The destruction of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party. If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party.
If you are the victim of a personal injury, contact our attorneys at 1-800-776-4529, or online. We have handled automobile accidents, slip-and-falls, medical malpractice cases and other serious personal injury lawsuits, and we can identify any evidence that must be immediately preserved.
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