Preserving Evidence After An Accident

by Attorney Ronald M Papell

When accidents occur the first consideration, after insuring that the injured are given appropriate care and medical attention, should be the preservation of accident scene details that may one day become critical in determining the rights of the victims. While it would be nice to know that those who cause accidents are honest, caring individuals who want to own up to their responsibilities and insure that those they hurt are properly compensated, most, even those who may admit fault at the scene, turn out to be anything but truthful after they speak with their insurance company or the lawyers they hire. Regrettably, and with ever increasing frequency, insurance companies persuade their insured’s to not admit anything but rather to consider their future insurance premiums when making statements or giving their depositions. Similarly, the lawyers hired by the insurance companies, especially those who are employed as “house counsel” are all too often more interested in saving their employer/insurance company money and less interested in seeing justice done or the having the truth come out.

The lawyers hired by insurance companies have a dual role. They are being paid by the insurance company but are supposed to be representing the insured! This dual role often presents a conflict as the insured/driver/owner may want to admit fault, especially when they know they caused the accident, yet their insurance company lawyer can often persuade them to testify with half truths if not outright dishonesty. More and more lawyers representing insurance companies and their insured’s are permitting if not encouraging their “clients” to testify falsely under oath. This practice, suborning perjury, is itself a crime yet continues to go unpunished and unabated due to the difficulty of proving that an individual has knowingly testified falsely. While obtaining a signed statement acknowledging responsibility from the other driver at the scene would be invaluable, the likelihood of doing so is slim and your ability to do so potentially hampered by your having been injured or otherwise incapable of securing a confession of fault. The solution, at least in part, is to secure as much information as you are capable of collecting at the scene.

While in the past taking notes and measurements were all that one could do to protect their rights, all of that changed with the advent of the cellular phone. With the excellent cameras that most phones come with an accident scene can be captured and memorialized by taking as many photographs as possible. The taking of photographs is not a simple matter of snapping photos of the other car or truck. While it is essential that you take photographs of the other vehicle and especially the license plate of the vehicle to insure that you can identify the owner/driver later, there are many other photos that you should make every effort to capture. Initially, in addition to photographing the license plate of the other vehicle(s) you should photograph the driver’s license of all other drivers involved in the accident. If witnesses are present at the scene you may want to ask them if they would permit you to photograph their driver’s license to allow you to contact them when you are better able to ask them about their observations. While these essential photographs should be accomplished in every accident, there are numerous other pictures that may make all the difference should peoples memories fade or their statements otherwise change for any reason.

The location of all of the vehicles at their positions at rest, i.e. where they have come to a stop immediately after the accident, can often be critical in later establishing the directions of all vehicles and where they were located when the collision occurred. While it may seem that such information will be readily available or otherwise provable later, experience has shown that such is not always the case. A few examples will bring in to focus what can happen when photos aren’t available to keep people honest.

Two cars collide in the middle of an intersection. One of the vehicles had a stop sign for its direction of travel. Afterward, the victim takes pictures of the vehicles in the middle of the intersection and believes he has no reason to do anything more, after all, the other person ran the stop sign. Imagine your shock when you contact the other drivers insurance company and learn that their insured is claiming that you were on the other street and that you ran the stop sign! Had you taken pictures of the vehicles and the street signs in the background you would have improved your chances of prevailing in your claim. Likewise, taking pictures of skid marks leading up to the stopped vehicles can also be critical in establishing fault. Any debris from the vehicles left on the roadway at the scene should also be photographed. Remember, the number of pictures you take do not increase the cost so take numerous photographs of everything from as many angles as possible and from different distances, i.e. close up and further back. A close up photograph of damage to a vehicle often does little to portray the force of the impact or the location of the damage on the vehicle. Pictures from 5 or 10 feet away can often be far more helpful. As well, taking pictures of a side impact while facing the side of the car will often not accurately portray the force of the impact whereas pictures taken looking down the side of the vehicle may be far more accurate and clear.

In a case that we recently resolved, a motorcyclist was crossing through a major intersection when the defendant, whose attention was on something other than his driving, made a left turn into the side of the motorcycle fracturing the rider’s leg and ankle and requiring surgical implantation of metal rods and screws. The police investigated and located two independent witnesses who were directly behind the left turning vehicle and saw the vehicle suddenly turn left and strike the motorcycle. The officers determined that the area of impact was located in the lane the motorcycle had been traveling in and concluded that the left turning automobile was the cause of the accident. Examination of the motorcycle after the accident disclosed that the red car had collided into the side of the motorcycle and left “paint transfers” on the side of the motorcycle adjacent to where the victim’s leg would have been.

Unfortunately, even with two independent witnesses and physical evidence of paint transfers on the motorcycle, the driver of the left turning vehicle and his two passengers testified, under oath, that they had been stopped in the left turn lane when the motorcyclist ran into their stopped vehicle! As absurd as their contention was, nobody had taken photographs at the scene prior to the vehicles being moved and the one photograph of the left turning car sticking into our client’s lane of travel was not available. The case was litigated for 1 ½ years with the defense attorney denying liability repeatedly and eventually in sworn responses to written questions, claimed that the motorcyclist had been reckless and had engaged in willful wrongdoing. It should be pointed out that the driver and his two passengers, all executives with a major corporation had also failed to take a single photograph of their vehicle in its alleged “stopped” position in the left turn lane after the accident. In this case, the failure to take a photograph was almost as revealing as photographs of the vehicle at rest in the opposite lane of travel. The lesson is simple. Never “assume” that the cause of an accident is clear or that the other side will accept responsibility. Even honest people can be manipulated by their insurance companies or their lawyers. Those people who are willing to lie under oath can only be held accountable with evidence to disprove their false testimony. If the evidence is not preserved at the scene it can be lost forever and the injured party denied their right to recover for the injuries caused by the negligence of others.

As always, it is important to contact an attorney as soon as you can after an injury producing event and before you speak to an insurance company, theirs or yours! Assuming that you are not able to speak with an attorney at the scene, the next best thing you can do is take as many pictures as possible with the vehicles in their positions at rest. Make sure you take pictures from every angle and from multiple distances to ensure that you increase the chances that at least one of the pictures will establish what you already know, the fault of the other driver. It should go without saying that the foregoing also applies to other scenarios in which an injury might occur. Whether a fall, a dog bite or other injury producing circumstance causes the injury, photographs of the condition or the dog or the falling object will often be the one indispensable piece of evidence that will help you to recover for your injuries and damages. Protect your rights and preserve the evidence to insure your right to recover for the injuries you sustain due to the fault of others. Anything you can do to memorialize the scene and the vehicles or objects involved will potentially be invaluable to proving your claim. You should demand full and fair compensation and nothing less!