Preserving Evidence for Your Personal Injury Case

All you need to know to bring the best evidence to maximize your claim

When you have been injured in an accident, it is essential to do everything you can to preserve the evidence that will be essential to your personal injury claim. The process of preserving evidence begins immediately at the scene of your accident, and it will continue, with the help of your lawyer, during the days, weeks, and sometimes months after your initial injury. 

There is a ton of evidence from the scene of the incident that will be important in your personal injury claim. The following is just the tip of the iceberg, but should help you navigate the personal injury claims process. Consider the following specific steps you can take now in order to preserve evidence for your personal injury case.

Types of Evidence to Preserve for Your Personal Injury Case

Most strong personal injury claims will include multiple types of supporting evidence. For example, after a car accident or a slip and fall, you should try to gather the following: 

  • Photographs of the scene where the accident occurred
  • An official police report or other incident report 
  • Report from an accident reconstruction expert
  • Witness testimony from anyone who observed the accident
  • Written record of your own recollections of the accident
  • Medical records and medical documentation
  • Texts and emails
  • Social media posts
  • Any other relevant information

If there is any type of material—tangible or intangible—that relates in some fashion to the accident in which you were injured, you should assume that it is necessary to preserve that evidence for your case.

Photographs at the Scene of the Accident

If you are able to do so, use your smartphone immediately after the accident to take photographs of the scene where you were injured. The sooner you can take the photographs, the more valuable they can be for proving your claim. 

  • Take photographs from many different angles and vantage points. 
  • Take photographs from a distance to capture the entire scene and surroundings
  • Zoom in to take photographs of finer details
  • If your phone does not timestamp the images, you should email them to yourself or to someone you trust so that they will, in effect, be timestamped.

Written Accounts From Yourself and Witnesses

You should write down your own recollections of the accident immediately afterward, when your memory is fresh. Gather all relevant emails or texts in a folder (physical or virtual) to preserve any language you used to describe the accident and your injuries.

In addition, you should obtain witness contact information at the scene, and if possible, ask the witnesses to provide a statement at that time. Once you begin the process of filing a claim, you should get in touch with those witnesses and preserve any recollections they have about the accident that caused your injuries.

Injury Documentation and Medical Record Evidence

Medical evidence will be extremely important in your personal injury case. You should see a doctor or another healthcare provider as soon as possible after the incident to be evaluated. 

Keep in mind that, under New York’s contributory negligence law, a defendant may be able to argue that your recovery should be reduced if you are partially to blame for the severity of your injuries. For example, if you do not seek medical attention right away and your injuries worsen as a result, the defense could use this information against you. However, New York’s contributory negligence law allows a plaintiff to recover damages as long as the defendant still bears some responsibility (at least 1%). Then, the plaintiff’s recovery is reduced by his or her percentage of negligence.

Personal Injury Evidence You Must Preserve Under New York Law

Under New York law, parties in a civil lawsuit—including plaintiffs who have brought the case—must preserve evidence that would be relevant to the claim, including evidence that could harm the plaintiff’s case. Any attempt to intentionally destroy relevant evidence, and even a negligent failure to preserve evidence, can be known as “spoliation of evidence.” This issue arose first in the case Smith v. Superior Court (1984).

While subsequent cases in New York have clarified that a party cannot bring a separate cause of action for the negligent spoliation of evidence, New York courts can impose sanctions on parties who intentionally destroy or negligently fail to preserve evidence. 

A couple of examples of New York cases that deal with evidence preservation and spoliation of evidence include Whitney v. JetBlue Airways Corp. (2008) and Castillo v. Staten Island Cable LLC (2008). In some cases, New York courts have even dismissed claims where plaintiffs have lost evidence that could have been used by the defense.

The Statute of Limitations for Personal Injury Lawsuits in New York

No matter how hard you work to preserve evidence for your personal injury case, it will not help you if you allow the statute of limitations to run out on your claim. When you are gathering evidence for your case, it is important to bear in mind that, the sooner you begin this process, the stronger the evidence is likely to be in your case. When you wait too long to begin gathering evidence after your accident, valuable evidence can be lost. None of your hard work will be worth it unless you file your lawsuit before the “clock” on the statute of limitations has run out.

The statute of limitations varies for different types of personal injury claims in New York. For example, the car accident statute of limitations is three years. Accordingly, a claim must be filed within three years from the date of the accident in order for the plaintiff to be eligible for compensation. 

For most other cases brought on a theory of negligence, the statute of limitations is also three years from the date of the injury, including product liability claims and slip and fall cases. However, most medical malpractice cases must be brought within two years and six months from the date of the malpractice incident.

If you have questions about preserving evidence, including your rights and responsibilities when filing a personal injury lawsuit, you should know that a New York personal injury attorney can help you.



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