The Importance of Preserving Evidence in a Personal Injury Accident

Spoliation of and Preserving Evidence

The last thing on someone’s mind when they get into an accident is to think about their potential legal case and preserving evidence of the incident.

The priority should be for the person to be getting the care they deserve and not hiring a lawyer and filing a lawsuit.

However, there are important things you should do if you are in any type of accident.

Collecting Evidence For Your Injury Case

Photographs are incredibly important to document injuries and any property damage to occur.

Names of people who witnessed the events is also important to obtain.

Even if you don’t get their contact information, they still may be able to be tracked down later to give a statement if you have a name.

If you are in an auto or trucking accident, you should be sure to obtain copies of the other involved parties’ insurance information, police report, and driver information exchange document provided by the police.

Saving copies of this information will help preserve information about your case for when you have recovered and have time to consider all of the legal options available to you.

Preserving Legal Evidence

When an accident or injury occurs and a company is involved, there is an obligation to preserve evidence.

However, companies may not take this obligation seriously or may not even know an accident has occurred until they are put on notice of a potential claim.

A common practice once an attorney is involved in your case, is to send what is known as a preservation of evidence letter.

This letter will put the company on notice of a potential claim and prevents the spoliation of evidence.

Spoliation of Evidence

The spoliation of evidence is when a negligent party deliberately, negligently or accidentally destroys or deletes evidence relevant to a potential case.

Examples of evidence that is often subject to spoliation include the following:

  • Photographs
  • Files and Documents
  • Physical objects, tools, vehicles, equipment, etc.
  • Emails, Hard drives, metadata, and other electronically stored information

This evidence is required to be preserved in the anticipation of future litigation.

When Evidence Isn’t Reserved

In the event the evidence is not preserved and the party responsible for preserving the evidence did not take reasonable steps to preserve it, there is a presumption that the lost information was unfavorable to the party who did not preserve it.

If the evidence is involved in a lawsuit, a judge may instruct the jury that it must presume that the information was unfavorable, and in some severe cases, a judge may enter a default judgment against a responsible defendant.

The danger of the spoliation of evidence typically lies with the defendant in a case as the defendant will be the one with access to internal documents and physical evidenced related to the cause of the accident.

However, an injured person and their attorney must also be mindful of their responsibility to preserve and maintain any evidence that the injured person may have as that may be required to be disclosed to the defendant at some point in the case.

Let VanDerGinst Law Help You

Having an attorney on your side early on in your case is important to prevent the willful, negligent, or accidental destruction of evidence that could be crucial to your case.

If you’ve been injured and may have a claim or a question about the spoliation of evidence or any issue related to your case, do not hesitate to contact the attorneys at VanDerGinst Law to assist you with your questions.

You can contact us online, or call 800-797-5391.

We would be honored to help.

Do You Even Need an Attorney For Your Case?

Full Episode Transcript

Welcome to Legal Squeaks, I’m Dennis VanDerGinst, and before discussing today’s topic, I’d like to remind you all please subscribe to or follow Legal Squeaks on your favorite podcast forum and ask your friends and family members to check us out as well.

Today, I’m going to talk to you a bit about some of the things you should consider when deciding whether to hire a lawyer for your legal problem and what lawyer to hire if you decide that that’s the route to go.

Before we get to that, someone recently asked me what the difference is between a lawyer and an attorney. It sounds like a joke. I know, but it’s not. The terms are often used interchangeably and people presume that they refer to the same thing. But even though it is common practice to use them as synonyms for each other, there is a difference.

The term lawyer means someone who has successfully completed law school and has obtained a juris doctor degree.However, an attorney is a lawyer who is then gone on to pass the bar, the bar exam, and then been admitted to practice law in one or more states. So all attorneys are lawyers, but not all lawyers are attorneys, technically speaking. But for purposes of this conversation, when I use either term, I’m referring to someone who can represent others with their legal needs.

So there’s also been the question presented as to whether a non-attorney can represent someone else. Now, as I just referred to, unless you are an attorney admitted to practice law, you can’t represent someone else, at least not in court.

You can, however, represent the interests of a child or a ward if you are a parent or you’ve been appointed as a guardian or conservator for a person who’s judged under a legal disability or incompetent, which requires special consideration or for limited purposes through a power of attorney designation. So just wanted as an aside to bring that up before we get on to the topic of hiring attorneys for your legal needs.

So the first question is whether or not you should hire a lawyer. And the answer to that question primarily depends on the legal issue you’re facing. In broad terms, most legal problems fall under one of three different categories, either criminal, civil or public. By public I’m referring to administrative or regulatory laws which primarily deal with the structure of of the administration of government. It can overlap with criminal and the civil justice system, but we’re not going to really directly discuss that today.

Right now, we’re really going to focus just on criminal and on the criminal and civil justice systems, because those are the areas where most people are going to have issues that might require an attorney.

So criminal law refers to the laws that define criminal offenses. Those that determine when and how to charge people with those those offenses. Trying people for those offenses, and penalizing people who either are found guilty or plead guilty to those offenses. It includes federal and state crimes. It includes misdemeanors and felonies. Broadly speaking, it might also include pseudo criminal infractions like moving violations, for instance, speeding and nonmoving violations like parking infractions or equipment failures with with vehicles.

So do you need a lawyer if you’re charged with a crime or can and should you represent yourself? In most instances, if you are determined competent to represent yourself, you may do so. A judge will make the determination by weighing factors such as your age, your level of education, your familiarity with the English language, and the nature of the crime in which you’ve been charged.

But even if you can, meaning legally, you’re allowed to represent yourself, it doesn’t mean that you should represent yourself, as Abraham Lincoln said “a person who represents himself has a fool for a client”. Any person who is charged with a crime which could result in imprisonment is entitled to be represented by an attorney. It doesn’t matter if you’re charged with a felony, which are the more serious crimes, or a misdemeanor, which often results in fines and lesser penalties. As long as jail or prison time is possible, you are entitled to to representation.

For instance, if a defendant is facing a misdemeanor charge that has a maximum sentence of six months in jail, he or she still has a right to a lawyer, even if the actual sentence turns out to be a fine and probation with no jail time.

So the issue that this all hinges on is, is whether or not there is the possibility of jail or prison time. And if so, you’re entitled to a lawyer. And if you can’t afford an attorney, one will be appointed. I’m sure you’ve seen it on on television shows and in movies when people are read their rights. Now, typically, if you can’t afford an attorney, the appointed attorney will be a public defender, and want to talk a little bit about public defenders in a moment.

However, I wanted to also clarify most traffic traffic violations, which don’t don’t have the possible consequences of jail time, are not going to warrant the appointment of counsel because, again, there’s got to be that possibility of jail or prison time. With most traffic violations in most states, the consequences are usually going to be fines or losing your license for a period of time.

Similarly, defendants in civil cases don’t typically have a right to an attorney, except in rare circumstances where there is a potential loss of liberty, like if someone were found to be in contempt, they may under those circumstances, be facing some jail time, they, too, might then have an opportunity to get a lawyer appointed.

Now, the decision as to whether or not you can or can’t afford an attorney rests with the judge who’s going to consider your employment status, your income, your other financial obligations and assets, because just because a defendant has a job doesn’t necessarily mean that they can afford a lawyer. And if a judge determines in looking at all of these issues that it would create an undue financial hardship that judge may then decide to go ahead and appoint a public defender.

Typically, if you’re facing large fines and penalties, including the possibility of jail or prison time, you will want an attorney. If you can’t afford one, as I mentioned, a public defender might be perfectly capable of handling your case. Bear in mind that a lot of them have a lot of experience. The problem with public defenders, and this is why they they often kind of get a, a bad rap, is that they’re oftentimes burdened with too many clients, and they often also have very limited resources for hiring experts and doing other things that might be significant in presenting a defense, especially if you’ve got complex charges that are hovering over your head.

So it’s obviously, if you can’t afford to hire a private attorney, that’s still better than representing yourself. But I wouldn’t want someone to think that just because they were appointed a public defender that they were going to get someone who wasn’t capable. That’s simply not true.

Now, if you can hire a private attorney with reference to criminal charges that you have pending, you’re going to want to go through a checklist that would be similar to the checklist you would go through if you’re hiring an attorney for a civil case.

First of all, you’re going to want to know how much are they going to charge? And we can talk about charging a little bit more when we discuss civil cases. But sometimes it’s hourly, sometimes there’s a flat fee depending on the nature of the charges against you. But that’s certainly something you’re going to want to ask when you are trying to determine what attorney is going to be the right one for you.

You’re going to want to know how much experience do they have? And now experience is not just limited to the number of years they practice, but what type of practice have they had during those years? What percentage of their practice is devoted to criminal defense work? For instance, have they handled similar cases? Just because they have handled numerous battery cases doesn’t necessarily make them qualified, for instance, to handle a murder case.

So you’re going to want to get some sense of what cases they have handled and then how successful have they been with those cases? Do they try the cases? Do they plead them out, you know, get some information what, as to what their reputation is in the community. Go online and check to see if there’s any information about them. Hopefully most nowadays, most, if not all reputable attorneys and law firms have websites and on their websites, they should have information about the nature of their practice, the nature of their experience and some of these other things that would be certainly important to you.

You also want to find out if they have any conflicts with respect to the case that you are presenting to them. For instance, sometimes the defense attorneys might know the alleged victims. You know, I’d be a little difficult for them to represent you if they have some kind of affinity for or affiliation with a victim and or witnesses that may be involved in the case.

Do they have any friction with the judge or the prosecutor which might make things more difficult? Those are things you’d also want to explore. What resources do they have access to? Do they have adequate staffing? Do they have other partners or or attorneys that they can rely on? You know, there are a lot of very capable solo practitioners, but sometimes solo practitioners can get bogged down. They can they can get sick, they can die. You know, they can go missing. And there might be nobody else who is familiar with the case that’s going to be able to pick right up and go if you are forced to go to trial or if you’re forced to have a hearing on something that, and there’s no attorney available. So you’re going to want to know what resources they have access to.

And then finally, you’re going to want to get some idea of your comfort level with that firm, with that attorney, with that staff. Obviously, your freedom might be at stake if we’re talking about the possibility of, of prison or jail time being a, a penalty that you’re facing. You want to make sure that you trust that attorney to have your best interests at heart.

Now, hopefully you won’t have much need for an attorney in a criminal legal matter, but it is much more common that you might have one for a civil matter. And because civil matters include cases in which any private citizen or company needs a civil remedy or resolution to a legal matter. It can include personal injury matters where someone seeking compensation for injuries that were caused by someone’s wrongdoing. It can include real estate issues, immigration issues, business contracts, you know, making sure you have proper filings in order to to incorporate your business. It includes family law, which encompasses divorces, custody, child support, adoption, et cetera, estate lawyers, et cetera.

These are all examples of of civil matters that you might need an attorney for. So, you know, as I mentioned, there’s a much greater likelihood that at some point you may need an attorney, even if it’s not with respect to a criminal matter. So selecting the right attorney for a civil matter can be very involved.

Again, the first question here is, do you need a lawyer? Because there, frankly, are some things that nowadays you might be able to accomplish without a lawyer, which were more difficult maybe years ago.

So, for instance, if you go online, you can often find a lot of documents that can accomplish what you might have otherwise needed an attorney for. For instance, wills, contracts, sometimes real estate documents, things of that nature, you might be able to find those documents online and they may suffice. They may be perfectly appropriate for the purpose you need them for, but you do take a risk that what you get online may not be appropriate to your situation or it might not be appropriate in the state in which you reside.

So just be mindful that if you’re looking for that as an option in place of hiring an attorney, do whatever you can research-wise or or, you know, maybe even ask an attorney whether they think that this is an appropriate document that you downloaded, and if that will be something that, that you can use in your state. Some some firms and attorneys will answer that question for you. So you might want to check that out. You certainly want to do whatever you can to ensure that what you are using, what you’re gathering online, is sufficient for your purposes.

Some people also try to handle their own divorces or other disputes, again, that can be perfectly fine when the parties are in agreement, but if there are important items that can’t be agreed to, you probably need an attorney. So, for instance, perhaps a couple is getting divorced and they agree that they’re going to share custody and visitation. They agree to who’s going to pay child support. They agree as to whether there’s going to be alimony or maintenance and maintenance and what that amount might be, but maybe they can’t agree as to how marital property should be divided.

Well, then at least for that issue, they should have an attorney. They could certainly try to get most of it done by agreement. But if there are any issues that can’t be agreed to, you probably need an attorney, even if it’s just for that issue. Some people also, also will try to settle their own injury claims because they’re concerned that attorney fees will eat too much out of the money that’s going to be recovered.

Attorney fees in injury claims are often a contingent fee between 25 and 40 percent of the recovery. And indeed, there are times when people are perfectly capable of presenting their, their own claim. If necessary, they might even be able to present the case in small claims, especially if the court where it’s presented is more lenient as to the rules of evidence. But some courts are not some some courts the judges are going to hold you to the same standard that attorneys would be held to if they were presenting a case for trial.

So you have to be, again, sure that if you are presenting a claim that you’re aware of your rights and what you should be entitled to and how to get it. If you are presenting that claim in small claims, that you need to know in advance whether you are going to be held to the same rules of evidence that lawyers would be, in which case you probably don’t want to take that, take that step, because that’s going to be biting off an awful lot.

And the big consideration here is when people make that, use that rationale to handle a case for themselves versus hiring an attorney, a lot of times it is, again, because they think that they’re not going to end up with as much money if they have an attorney. But really, you have to look at it this way. Would you rather be entitled to 100 percent of $100, or two thirds of a $1,000? Because most of the time an attorney is going to get a better result than you will, a layperson will, on their own. And that’s statistically true based on the data that’s been accumulated by insurance companies over the years. So you have to keep that in mind. Even if that weren’t true, just the frustration that you save yourself is often worth hiring an attorney in that in that scenario.

So assuming that you conclude that you need an attorney for a civil matter, what are some of the considerations in hiring an attorney in those cases? Well, again, cost is often a primary factor. Some attorneys charge an hourly fee, some attorneys charge a flat rate and some charge a contingent fee. And it usually depends on the nature of the legal issue that you are asking them to address.

For example, if they’re asked to do something for which they have a pretty good idea what their time commitment might be, the, they will often charge a flat fee. So, for example, maybe you’re wanting them to do a simple will and they know what that’s going to entail. So they have a flat fee, simple wills cost $350. OK, or maybe they, you you ask them to handle a moving violation. It’s going to be a one time appearance maybe that they’re going to charge you a flat fee, $750.

But if it’s going to be an ongoing effort, then they’re likely going to charge hourly. So, for instance, a contested divorce, they might charge $200 an hour. Or a complicated probate over contested will again, they may may charge that hourly and they may charge, you know, anywhere between, I think the typical hourly fees are between $100 and $400 an hour, depending on the experience of the attorney and the type of case where you’re located. A number of factors. But you can anticipate $100 to $400 an hour is what you may be paying for an attorney doing hourly work.

By the way, don’t always go for the lower hourly rate because more experienced attorneys might get the work done a lot faster than a less experienced attorney. So you might have, for instance, a, a newer attorney who’s only charging $100 an hour, and you have a more experienced attorney charging $400 an hour. But the less experienced attorney is going to take 10 hours to get the work done and the more experienced attorneys is going to take 2 hours. So in that scenario, you’re actually paying $1,000, even though it’s $100 an hour, you’re paying a total amount of a $1,000 for the less experienced attorney and you’re only paying $800 for the more experienced attorney.

So when you are facing an hourly rate, be sure you try to get an estimate of the total fees. Attorneys may not be able to give you an exact amount, but they can typically estimate for you how much work is going to go into it and therefore around the range of fees you might be able to expect.

And then the last way that attorneys charge is with a contingent fee and contingent fees are typically reserved for cases where the attorneys are attempting to recover money on behalf of the client. For instance, compensation for injuries in a personal injury case or a worker’s compensation case.

In those situations the attorney is only paid if and when a financial recovery is made. And their fee then is a percentage of that money that’s recovered. Typically, that percentage will be anywhere from 25 percent to 40 percent of the amount recovered. And it depends on the again, the nature of the case. Sometimes workers compensation, for instance, the the contingent fee is less. Medical malpractice cases, the contingent fee is higher. Again, depends on the state as well.

Obviously, you’ll want that clarified in advance, so, you know what that that contingent fee is going to be. By the way, don’t be swayed by discount lawyers who charge on the low end of that range. As they say, you often get what you pay for. So even though pricing is a factor to consider, it is one of many factors to consider.

Another clarification that you’re going to want is whether there’s any retainer required. For flat an hourly fee cases, for instance, attorneys typically require a certain amount of that anticipated fee to be paid up front and then as it is earned, it is removed from the retainer. But even contingent fee cases, there shouldn’t be a retainer for the fees. However, some attorneys require what’s known as a cost retainer. That’s money that they’re going to ask you to pay up front for anticipated costs that will be necessary to proceed with the case.

For example, when dealing with an injury case, it’s very typical that the attorneys and staff need to order medical records and bills from treatment providers if the case gets filed. There are filing fees. There are court reporter fees. Often depositions need to be taken of treatment providers, or experts need to be retained in order to testify.

Those are all costs that are separate from the attorney fee because this is being used to pay for, for, you know, the services of other people. And sometimes the retainers that are asked for costs can be hundreds or even thousands of dollars. So you want to know that up front. There are there are certainly law firms out there that will front those costs. They will advance those costs so that you are not out of pocket and you’re going to want to know that up front.

You also want to know what the focus of their practice is. The practice of law is a lot like the practice of medicine. There are practitioners who have general practices and then there are others who specialize or focus on specific areas. So general practice lawyers handle a wide variety of legal issues and they can be more or less comfortable with, you know, numerous areas of law. You’re going to want to explore that if you consult with the general practice lawyer, determine what areas of law they’re more comfortable with, what what areas they may be less comfortable with.

General practice lawyers are certainly a good option, perhaps even the best option for basic legal needs, like drafting a simple will, handling real estate, closing, taking care of a speeding ticket, you know, those types of things because they’re often less expensive than a specialty lawyer. And they can handle those those matters expertly. But if the case is more complex, then you might want to consider hiring an attorney who is more experienced in that specific area of law.

So, for instance, if you needed brain surgery, you’d obviously go to a brain surgeon, not to the family doctor, nor to a gynecologist. So by the same token, if you needed a patent or trademark done, you would likely want to consider hiring a patent attorney or an attorney who’s more experienced in intellectual property law rather than a general practice attorney.

Experience again with civil practice matters is also an important factor to consider, it goes hand in hand with that practice focus. An attorney, there is a distinction, because an attorney can decide to focus his or her practice on personal injury, for example. But just shifting the focus doesn’t mean their experienced. In other words, they could have been doing something else or they might be right out of law school and they’ve determined “my focus is going to be patent law, or real estate law, or personal injury law”.

But that doesn’t mean that they have the experience that you might need or that is certainly going to make you feel more comfortable, because experience means prolonged exposure to that area of law and continual opportunities to handle that area of law. It doesn’t always mean the length of time in practice, but that can be a consideration. It can also be the number of clients that they’ve represented for those types of cases. So, again, you’re going to want to make sure that you are checking out online references to see what the experience is for the attorney or law firm you are considering.

Another consideration that you’re going to want to factor into the decision should be the potential conflicts of interest. We’ve referenced that with respect to criminal law, but also with civil law, because, for instance, if you have a contract dispute and you want to be sure that the attorneys on your side, you want to ensure that that attorney who’s representing you isn’t somehow beholden to the defendant. You know, maybe, for instance, they have represented the defendant in the past.

In the divorce cases we mentioned the ability to, you know, do a lot of things by agreement. Sometimes there’s only one attorney who is retained by one party or the other. And it may seem that that attorney is representing both parties because a lot of it is being done by agreement. But really, that attorney should really represent just one party. So you’re going to want to be familiar and aware of where those conflicts may exist.

A common situation that arises in injury cases, for instance, is that an attorney will take a case to represent an injured party against a defendant, but that defendant is insured by an insurance company who often uses that same attorney. So how can an attorney fight for you against the same insurance company for which they sometimes work? It’s difficult to be comfortable that an attorney in that position will fight to get every penny for which you, as the injured party is entitled, when you know that they also rely on that same insurance company to supplement their own living. So you need to, you know, ask those questions in advance.

Another often overlooked area of inquiry is convenience. It shouldn’t be, probably when we’re dealing about legal issues, convenience might need to take a backseat sometimes to thoroughness, for instance. But in our fast paced society, it’s often difficult for people to deal with attorneys, to deal with the legal system, spending time going to attorney offices or the courtrooms or being on the phone with attorneys and staff. It can really bog people down. So you’re going to want to see, you know, what resources the attorney has.

Are they able to do video conferencing? Can they come to you if necessary? Ask about other resources? Do they have a reasonable case management software? Do they have adequate staffing? Again, are there multiple attorneys in their office in the event that it’s necessary for someone to cover a hearing or cover an issue for which the attorney you’re primarily dealing with isn’t available?

And as with the list for, for criminal defense attorneys, ask about their reputation. Search them out online, look at online reviews, look at testimonials, look at their website, and finally assess your confidence and and comfort level with that lawyer or law firm.

Depending on the complexity of the case, you may have to spend a lot of time with them. So you have to be sure to trust them. Be sure that you are comfortable with them.

So I hope this information was useful. As, as always, please be sure to follow us or subscribe to us, for free, to Legal Squeaks on your favorite podcast platform, you can also suggest topics or guests at legalsqueaks.com. Also, please check out our other podcast, Uncommon Convos.

Join us next week for another episode of Legal Squeaks.

And in the meantime, have a great day. Stay safe. And I love you all.

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The information contained on this website is presented by VanDerGinst Law P.C. It is not intended nor should it be construed as professional legal advice. The information is general in nature about the Firm, the scope of services we offer, and our community outreach, it is not legal advice. Please contact us by phone, email, mail, or via this website for inquiries. Contacting us does not create an attorney-client relationship. Please contact a personal injury attorney for a consultation regarding your situation. This website is not intended to solicit clients outside the State of Iowa and/or the State of Illinois.

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