GATHERING AND PRESERVING THE EVIDENCE: THE BIGGEST SINGLE FACTOR IN WINNING OR LOSING A PERSONAL INJURY OR WRONGFUL DEATH LAWSUIT

4 FEBRUARY 2002

If you are injured in an accident, during a medical procedure or through the use of some dangerous drug (including drugs containing ma huang, ephedra, PPA and many other dangerous compounds), you may be entitled to just compensation.

If a loved one is killed through another's accident or negligence, you and your family may be entitled to just compensation.

However, DON'T THINK FOR ONE INSTANT THAT AN INSURANCE COMPANY OR A MAJOR DRUG COMPANY OR A DOCTOR WILL PAY YOU ANY MONEY SIMPLY BECAUSE YOU ASK FOR IT, EVEN IF YOU DESERVE IT! Insurance companies, drug companies and doctors have been carefully trained to MAKE YOU FIGHT FOR EVERY PENNY YOU WILL EVER SEE! If you forget this for one instant, you stand to lose your case.

A period of shock or grief naturally follows a serious accident, injury or death. Let this run its course. However, once you and your family members are "back on their feet," it's time to GATHER AND PRESERVE THE EVIDENCE!

You can hire the best lawyer in the entire country (the lawyers from my firm, of course), and you would still lose your case if you have lost all of the important evidence.

You could hire a marginal lawyer who could win your case, or obtain a good settlement for you, if you have gathered and preserved all of the important evidence.

What is Evidence?

Evidence is anything which tends to prove your case or disprove the other side's defense to your case. It can be the testimony of witnesses, it can be documents, it can be videotape, it can be life records. There are many things which need to be proved to obtain a just verdict. To name just a few:

1. Evidence of Your Need for Future Medical Care: If you need medical treatment, your attorney will need to be able to prove your treatment and how much you were billed for this treatment. For this, your attorney will need your medical records and invoices.
2. Evidence of Lost Wages or Lost Financial Opportunities: If your injury has caused you to lose work, you may recover compensation for lost time from your job. However, to obtain this type of compensation, you will need to have payroll records or tax returns to show how much you were earning before you were injured.
3. Change of Lifestyle or Disability Evidence: If your injury involves future disability, you will need lots of evidence of your lifestyle before and after the injury, so that an expert witness can be brought into court to explain to the jury just how this injury has impacted your life. For this, you will need lots of evidence-photographs, family videos, witnesses among your friends and family members, co-workers-to prove how your life changed before and after the injury.
4. Photographs and Videotapes: It is always an excellent idea to take LOTS of photos, or even a videotape, of the accident site, as soon after the accident as possible, and preferably under the same lighting and weather conditions. For instance, if your accident involves a certain stretch of road at sunset on a rainy day, and you were traveling westbound, it would do little good to take lots of photos of this stretch of road at dawn, with the camera facing southbound, on a clear day. The point of gathering the photographic evidence is preserve your ability to show a judge or a jury, sometimes many years later, exactly what the scene was like for you at the time. You need to get this evidence as soon after the accident as possible, because roadways, for instance, are often re-painted, or the buildings alongside the road may change, or new signs may be installed and old signs removed. You need to preserve this evidence just as soon after the accident as is possible.
5. Witness Names, Addresses and Phone Numbers: Gathering witnesses is another vital task. There are those instances, such as a traffic accident in a distant town, where you know none of the eyewitnesses. However, in my experience, this is usually rare. Usually my clients know at least some of the witnesses who witnessed the accident or the situation causing the injury. Providing your attorney with the names and addresses and business and home phone numbers and email addresses is positively critical to the correct preparation of your case. For hard-to-find witnesses, you and your attorney may need to hire an investigator to locate and interview them.
6. Medical Records for Medical Malpractice Action: In a medical malpractice case, obviously you will need to gather all of the medical records of the treatment which resulted in your injury. If you had previous treatment to the same area of your body, or for a similar condition, you definitely will need those records as well, and will need to turn them over to your attorney at the first opportunity. Most hospitals have standard release forms which you can use to sign and obtain a copy of your medical records. Some hospitals will charge you for copying the records, but this is rarely more than a couple of hundred dollars.
7. Complete Diary: I instruct all of my clients to prepare a journal or diary of the entire episode which is the lawsuit. When did it start? Most injuries start with something before the actual accident. If it's a defective product, my clients must tell me when they bought it, from where, how often they used the product and whether the product had any difficulties before the accident. For medical malpractice, I need to know the history of the condition which led to the medical treatment, as well as the patient's history with the doctor. For cases involving dangerous drugs and supplements, such as ephedrine, I need to know exactly which products the person has been taking, at what dosage levels, for how long, in what combination with other drugs or supplements and any other pertinent information. I also will need to know lifestyle issues which may affect the case: is there a smoking history? Is there a history of illicit drug use? Is there a history of high blood pressure or obesity? Are there previous medical procedures? These are issues I need to know about when I'm preparing the case, and the client must provide this information to me in diary form at the very beginning of the case. The diary then becomes your roadmap for the case, because there will be times months and years later in the case when you will have to give testimony under oath about your case. It is almost impossible to remember all of the important details, and your diary will assist when, 9 months later, you will have to give a deposition under oath, and then again 18 months later when your case will come up for trial.

This is a partial list. Your attorney will help guide you towards gathering more evidence specific to your case.

DO NOT wait for your attorney to tell you to gather evidence. You should gather as much evidence as possible BEFORE your first attorney appointment. If you have some of the evidence gathered, this will help the attorney evaluate your case for you.

This short article is provided as a public service by Robert F. Brennan, A Professional Corporation, located at 3150 Montrose Ave., La Crescenta, Ca. 91214. Our phone number is (818) 249-5291.