To paraphrase Benjamin Franklin, “An ounce of preservation is worth a pound of leverage.” If you want to have the leverage to negotiate a favorable settlement or convince a jury to sign your verdict form, you need to protect your case and preserve your evidence from day one.
To many, this is a frightening subject that keeps practitioners up at night. To me, evidence collection and preservation is an opportunity to get a leg up on the opponent by gathering the physical and testimonial evidence that will ultimately prove your case. Of all the information gathered during a client intake, questions regarding the collection and preservation of evidence should be at the top of every trial attorney’s list. Evidence will not last forever. At some point, it will be destroyed, tainted, or forgotten.
You do not want to be prepping your client for trial six months after the incident and suddenly learn the airbags in their rented car had failed to deploy during a high speed, head-on collision. As you try and process this new information, you come to the awful realization that the car was declared a total loss and has been scrapped by the insurance company. There will be no investigation into the failure to deploy or its contribution to your client’s injuries. You have missed out on another potential source of insurance coverage and have failed to protect your client.
As a former Assistant State’s Attorney, I had the opportunity to work crime scenes with officers and detectives who taught me the importance of meticulous evidence collection and preservation. During a criminal investigation we would spend a great deal of time and effort on the subject of evidence. The yellow tape was not removed until everyone was absolutely sure that no trace of potentially useful evidence remained uncollected.
We brainstormed and sent preservation letters and subpoenas to phone companies, internet providers, employers, grocery stores, restaurants, etc. In addition to physical evidence and records, we also focused on the collection of testimonial evidence from witnesses through recorded interviews and written statements. This kind of effort locked up a case and ensured that nothing was left to chance.
While no Personal Injury firm has a team of experienced detectives at their disposal, these same investigative principles can, and should, be applied to a civil case. Work with your client and brainstorm as to potential sources of evidence. Form a game plan. What will you want to argue during trial? What exhibits will you use? Where do you need to send preservation letters? Who do you need your investigator to interview? What subpoenas need to be issued? Take photographs. Take videos. Have your client keep track of his pain, suffering and loss of normal life in a journal. Document everything.
In an auto case, before the property damage claim is settled make sure there were no mechanical issues that contributed to the crash or your clients injuries. If you aren’t sure, send a preservation letter, and talk to an expert. Take photos of all cars (don’t rely on insurance photos). Have your client take photos of the injuries as they heal of the wheelchair, cast, sling, stitches, etc. These will be invaluable documentary evidence for you to use during settlement negotiations and trial.
If liability is at issue, interview all witnesses identified by your client and the investigative report. If the color of the traffic control device is at issue, send a preservation letter to the city to keep documents related to the programmed light sequence on the day of the crash. Are there cameras at the intersection? If so, are they controlled by the state, county, or municipality? Typically, these recordings will be deleted or overwritten at some point so time is of the essence.
Are there security cameras at a nearby retail business? If so, send an investigator to their loss prevention department or manager to view the tapes and to hand deliver a preservation letter. While this is a lot of work that may not turn up any useful evidence, no trial attorney can pass up the opportunity to capture the defendant’s negligence on tape.
The examples here are from automobile cases, but the steps I’ve outlined fit virtually any injury case. The overall rule is to be proactive and take the time to think about evidence, and actively collect and preserve it from the first contact with your client. Just that extra ounce of preservation will give you the pound of leverage you may need to win your case.