201412.22
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The Proof Is In The . . . Proof

You may have heard the adage that “the proof is in the pudding.” That’s actually a twisted version of the original, which said, ”The proof of the pudding is in the eating.” In a personal injury claim, the proof is in the . . . well, the proof, or the evidence. If you want to prevail on a personal injury claim, you are going to need something to back up your allegation that it was the negligence of another person or entity that caused you to be harmed.

Plaintiffs seeking compensation for personal injuries bear the burden of proof. In a civil case, this must be shown by a “preponderance of the evidence,” a lower threshold than the “beyond a reasonable doubt” standard in criminal cases. But even at that, proof is going to rely on credible evidence, not just a compelling story.

A plaintiff in a personal injury case must prove that his or her injuries were caused by a defendant who owed a duty of reasonable care to the plaintiff but who breached its duty under the law, and that the defendant was negligent and it was that negligence that caused the injury. Only then is the plaintiff entitled to recover damages, compensatory and sometimes punitive, and evidence is also necessary to adequately compute the amount of damages due the injured party.

In many cases, the best type of evidence is photographic, illustrating another adage that “a picture is worth a thousand words.” After a car accident, photographs should be taken of the relative position of the vehicles, the condition of the roadway, damage to the interior and exterior of the vehicle, and relevant highway signs. Even a cellphone camera is sufficient to show the accident scene as it existed at the time. Later, an attorney’s investigative team may return to the scene for measurements and accident reconstruction, also useful evidence but not the same as contemporaneous photographs.

Victims of slip-and-fall or premises liability accidents can also benefit from taking pictures of the icy sidewalk, tree limbs, shaky handrail or other condition on the property that contributed to the injury-causing accident. If the property owner cleans up the accident scene immediately afterward, you might have a hard time showing that it was their negligence, not yours, that caused your suffering. If you are unable to take photographs because of being transported for medical treatment, try to have a friend or bystander photograph the scene for you as soon as possible.

Some forms of evidence will be obtained by the lawyer as litigation progresses. These may include medical records, police reports, maintenance and repair records, construction documents, inspection and citation history, wage verification, and forensic economic forecasts. As persuasive as these might be, it is often the plaintiff himself who has the opportunity to provide the most crucial proof.

In the case of a product injury claim, it is absolutely essential that the product itself be kept as evidence. Product liability cases in the U.S. are governed by strict liability. Once the product is shown to have been defectively designed or manufactured, the defendant manufacturer is liable. But if the product in question was disposed of, there will be no way to prove the case.

For example, when a highway accident occurs because of a tire blowout, the failed tire is crucial evidence and must be kept as evidence, not disposed of once it has been replaced.

At McNeely Stephenson, we put all of our resources to work for you. But even they can’t conjure up evidence that has been destroyed through carelessness, lack of knowledge, or the passage of time. If you or your loved one has been injured and you believe it was due to someone’s negligence, call us at 1-855-206-2555 and let’s discuss your potential claim and how you can meet the burden of proof.