You get hurt. Your first thoughts are about getting medical care. You aren’t thinking about calling this Central New York personal injury lawyer or filing a lawsuit. You’re not “the suing type”, you say. But several weeks later, when you realize you may be stuck with this injury for the rest of your life, you start seething about the careless jerk who hurt you.
So you call me. Sure, you have a lot of questions, but so do I!
If you slipped and fell I am going to ask you, “do you still have the shoes you were wearing”. Why? I need those to disprove the almost certain defense that worn out or inappropriate footwear made you fall.
If you slipped and fell in oil or some other substance, I’ll ask, “did you already wash the clothes you were wearing”? Why is this important? I want to have a chemist examine the liquid to see what it is and where it likely came from. Maybe one of defendant’s machines!
And if you were hurt in a car accident, I’m going to ask, “is the car still available for inspection”? The physical damage to the car tells us a lot about how the collision happened and whose fault it was. It also tells us a lot about the g-forces that transferred into your body so we can prove your injuries are authentic and not feigned.
In sum, what I want to know boils down to this: Did you preserve the evidence? This is important not only because it helps me prove your case, but because you, as the plaintiff, are legally required to preserve the evidence. This is because whoever you sue has a right to examine the evidence to disprove your case or prove his/her defenses. If you destroyed the evidence or threw it out, even accidentally, even without knowing any better, a judge can later “sanction” you.
What kind of “sanctions”? It depends on two things: The importance of the evidence and the degree of culpability on your part. If the evidence was not so important, and you made an innocent mistake in destroying it, the judge might simply instruct the jury that it can, if it chooses, infer the evidence would have disproved your case. But the judge is likely to be harsher on you if the evidence was either critically important or you knowingly destroyed it. In such cases, the judge can do to your case exactly what you did to the evidence; throw it out!
Bottom line: It is best to call me early on, not weeks after the accident. But if you don’t call me right away, at least preserve all the evidence. Don’t mess with it, don’t toss it, don’t sell it, don’t fix it, and don’t wash it. Preserve it. Photograph it. Bag it. Thanks!
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers Michaels & Smolak, P.C.