CHAPTER 3
IMPORTANCE OF EVIDENCE
IN A PERSONAL INJURY CASE
Witnesses and evidence are critical in a personal injury case. Photograph everything: the vehicles, your injuries, the hospital stay, and rehab. In a death case, family albums are critical to show a loving family. Video of family get-togethers, birthday and Mother’s Day cards can really make the family relationship very real for a jury. If there is a serious injury, your MRIs, CAT scans, X-rays, and surgical photos are crucial. Nothing will enhance a case more than showing plates and screws holding your skeletal frame together.
All carriers will request a recorded statement. We never say no to the request because we have nothing to hide. You have to have your attorney at your side while making the statement. A good recorded statement makes a proper settlement much more likely. The statement can be used against the client in court, so it is a two-edged sword. A truly bad recorded statement makes litigation much more likely. Review the accident report before making the call, have a list of your injuries in front of you when making your statement. Keep it short and business-like with no chitchat.
Much of the evidence is obtained through what is called discovery. It consists of requests for production, interrogatories, requests for admissions, and depositions. A request for production will force the defendant to give you their documentation. Company emails are critical to show they had knowledge before a tragic accident and did nothing. Written company policies that the employees were unaware of and violated with alarming regularity will be sure to create anger amongst the jurors, who will then be charged with assessing damages. Interrogatories are written questions the other side must answer, in writing, and be sworn to before a notary.
The deposition is the most powerful discovery tool. You have the witnesses answering your questions under oath, on video. Many a case is lost when a company representative behaves badly in a videotaped disposition. The company is left no alternative but to settle, on your terms, to prevent the testimony from appearing in open court for the whole world to see.
Two quick examples. I had a company employee testify that the general manager confiscated his laptop computer and destroyed the evidence the day after my client had burned to death. In another case my client had died of heat exhaustion while working outside in 104 degree heat. The corporate representative blamed the victim for his own death. When asked why the deceased was at fault he stated on video, “I think he was dumb as hell.” You cannot make this up. I have countless anecdotes of this kind of damaging evidence, all on video.
Get Medical Attention Immediately After An Accident
When injured in an accident, getting prompt medical attention is critical. The longer you delay, no matter the reason, the less value is placed on your claim by an adjuster. They even have a term for it. They will tell your lawyer you have a “hole in treatment.” The larger the hole, the less money will be offered. You must do what the doctor instructs. Otherwise, they will put a note in your medical record that says you were non-compliant or left against medical advice. These terms will destroy your case.
Keep A Diary Of Events After An Accident
It is an excellent idea to keep a diary of what happened after the accident. It needs to include all the doctors you had to see, the pain you are in, and the sense of hopelessness and depression you experience. It can be very powerful when a grown man comes to tears while telling the jury his wife had to wipe him after going to the bathroom, because his arms were in casts. A detailed journal will make it easier to elicit this kind of testimony. Jurors are very sympathetic to a person suffering humiliation due to their injuries. It is compelling evidence of mental anguish. Most people will not keep an accurate journal because they hate to write. If you are not inclined to write, leave it alone. A bad journal is worse than no journal at all and once you create a document, the other side can discover it.
Testimony versus Physical Evidence
I cannot emphasize enough how important evidence is to winning a personal injury case. While testimony from a party or family member is evidence, it is inherently suspect due to bias. If a person has a motive to lie, their testimony must be corroborated to be credible. We had a fatal accident involving an 18-wheeler where the driver claimed he did not see the plaintiff until the last second and he immediately applied his brakes but there was nothing he could do to avoid the collision. We obtained the black box from his rig.
We conclusively established with his own data recorder that he had visual site of the Plaintiff for 18 seconds before impact and then failed to brake for an additional 14 seconds after the impact. It was four in the morning and the driver had obviously fallen asleep. He failed to brake for 32 seconds from the time he could physically see the other vehicle. Without the physical evidence he might have gotten away with lying. After all, the only other witness (my client) was dead.
In another case involving catastrophic injuries delivered by a reckless 18-wheeler driver we took the position his driving logs were fabricated to comply with sleep requirements. The driver of course denied his logs were fraudulent and claimed they were completely accurate in every respect. He went so far as to say he would never lie in his driving logs. We obtained a year’s worth of driving logs. We found an entry where he claimed to have made a trip from Dallas to Austin, Texas in 1.5 hours. Using simple math we calculated he had to average 160 MPH to get there that fast.
I then accused him of driving 160 MPH based on his logs that we know are accurate because he assured us he would never lie. He responded that was impossible because there was a governor on the carburetor for his rig that would not let him go above 65MPH. He was so ignorant, he was not actually aware of how ridiculous he had become. The defense cannot recover when they get caught lying on a galactic scale. This is the reason I tell my clients do not lie, ever. It is fatal when you get caught
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Statute Of Limitations For A Personal Injury Case
The statute of limitations for a personal injury case in Texas is two years. Be careful here because in some states you only have one year. When suing a governmental entity, there are other laws that require notice to the state in very specific ways. If you are dealing with a governmental entity in Texas, you must get to a lawyer immediately. You cannot depend on the two-year statute of limitations.
What Is A Comparative Negligence State?
Texas is a comparative negligence state. That means your negligence, if any, is deducted from the damage award. For example, if the jury awards $100,000 in damages and determines you were 40% negligent, then the $100,000 award is reduced by the judge and a judgment is entered for $60,000. If the plaintiff is found to have over 50% negligence then that is a complete bar to recovery. Using our same hypothetical $100,000 jury award, if the plaintiff was 51% negligent he is awarded nothing.
Why Is It Important To Buy Uninsured Motorist Coverage?
I often describe a personal injury case as a three-legged stool. You need liability, damages, and an entity that is able to pay. In most cases, the third leg is an insurance policy. If you remove one of the legs, the stool will not stand. No liability, no case. If no one did anything wrong, you have no one to hold responsible. If no damages occurred, then no case. Negligence does not translate to a money award if you are unhurt.
If a drunk, homeless man in a stolen car runs into you and cripples you for life, there is no case. He was negligent for driving drunk and your damages are enormous, but he is uninsured and lives under a bridge. You have no way of collecting anything from someone who literally has nothing. It is very important to get uninsured motorist coverage with high limits and put a $1 million umbrella policy on top of it. Then, you cannot be victimized by the irresponsible, uninsured party.
