The Path to Securing Critical Evidence in Accident Cases
Like many workers, Stan (name changed for privacy) had followed in his father’s footsteps, embracing the family trade. What set Stan apart, however, was the rare privilege of still working alongside his father—a seasoned roofer—at the age of 35. One day, father and son were hard at work on a construction site, using Bobcat track loader vehicles to remove asphalt from a roof. When Stan’s father had trouble lowering the “bucket,” or digging attachment, of his vehicle, he called his son into the cab to help him.
The two spent some time attempting to lower the bucket before Stan stepped out of the cab and walked around the front to get a closer look. In a sudden and tragic moment, the bucket dropped, crushing Stan under its weight. Stan’s father could only watch in horror as the son he loved passed away before his eyes.
Partner Pawel Wierzbicki, who handled the wrongful death case along with partners Daniel O’Toole and Frederick Aranki, immediately served a preservation letter to the site owner, asking that the Bobcat remain untouched for expert examination. He was not the only one who wanted to inspect the Bobcat, however. Local police had begun to conduct a criminal investigation of the site and circumstances, and they had already arranged for their own inspection of the Bobcat. Wierzbicki’s requests to have our own expert present during the inspection were repeatedly denied.
Once our attorneys gained access to the Bobcat, we first confirmed that the prior investigation had done nothing to alter it. Although the criminal investigation had concluded that the Bobcat was free of any defects, it relied on an expert associated with Bobcat’s manufacturers—a connection our firm viewed as a potential conflict of interest. Ultimately, our findings aligned with those of the criminal investigation: the Bobcat was not defective.
Wierzbicki didn’t give up. The question of what had gone wrong still remained, demanding answers. He served subpoenas to the building owner and management company, seeking every piece of information they had that was relevant to the case. As he pored through this information, he found two smartphone videos totaling less than nine minutes. These brief videos proved to be a pivotal turning point in the case.
The videos depicted our deceased client being “trained” by the owner of a rental company to use the Bobcat vehicles rented to the site. In one of the videos, the deceased pointed out that he and his father were roofers, unused to using heavy equipment like a Bobcat. Instead of taking this seriously, the rental company owner breezed through a short list of basics, neglecting to follow up on our client’s hesitations. Worse, the training failed to highlight important safety mechanisms that would have prevented the bucket from falling. One of our partners estimated that the total training time the deceased had received amounted to one minute and seven seconds.
This undeniable evidence of negligence on the part of the rental company—negligence that directly led to our client’s untimely death—allowed us to secure a $1,000,000 settlement. While no amount of money can ever make up for the needless loss of a human life, this resolution carried profound significance. It unequivocally affirmed that Stan’s grieving father was not to blame for what had happened to his son, and it helped our client’s loved ones—including his wife, to whom he had been married for less than a year—to attain some comfort in the thought that justice had been done.
As the case illustrates, the search for evidence often leads lawyers down a winding path of accident investigation. This article explores common obstacles lawyers encounter when gathering evidence for a case and the strategies they use to overcome them. Anticipating potential setbacks helps plaintiff-side attorneys stay one step ahead of the defense, and being dogged and creative in the face of obstacles helps them obtain justice for clients who badly need it.
Need to Know:
- Attorneys have various methods of requesting evidence; experienced attorneys know which approach to use depending on the situation and stage of proceedings.
- Knowing what evidence to look for is just as crucial as understanding how to find it, requiring a thorough knowledge of the law governing different types of accidents.
- A good personal injury attorney is not only persistent in securing evidence, but creative in finding sources.
In This Article:
- Vanishing Evidence: Preserving the Accident Scene
- Securing Accident Footage Before It’s Erased
- Hurdles in Finding and Retaining Witnesses
- Challenges of Proving Damages Using Medical Evidence
- Legal Moves to Preserve Evidence: Preservation Letters, Subpoenas, and More
- To Know What to Look For, You Need to Know the Law
Vanishing Evidence: Preserving the Accident Scene
Ideally, every accident scene would be perfectly preserved until the victim’s legal team had the opportunity to examine it. Unfortunately, the reality is that third parties—whether they’re employers, contractors, municipal authorities, or just bystanders coming in contact with the accident scene—tend to start cleaning up the area soon after the accident.
An attorney’s best bet is immediate investigation. An experienced attorney will prioritize arriving on the scene as soon as possible and take rapid action to dispatch any preservation letters or FOIA and FOIL requests that need to be made.
Even the most rapid action can’t guarantee total preservation of all the evidence needed. Construction sites are particularly challenging because many sites are altered within 24 hours, and if a preservation letter isn’t quickly dispatched, it’s likely that any vehicles, tools, or devices involved in the accident will be resold for parts or sent to a junkyard. If these items become inaccessible, it may be necessary to find other sources.
Securing Accident Footage Before It’s Erased
Video footage, while among the most powerful sources of evidence your legal team can obtain, is also among the most fleeting.
Most security cameras automatically tape over or erase their data within 48 hours to two weeks. Many personal injury clients owe their successful case resolutions to rapid action on the part of their attorneys and the investigators they work with. This is especially true in motor vehicle accident cases, where some of our best results have come from obtaining security footage from nearby restaurants and businesses.
However, in some cases it’s impossible to secure footage in time due to circumstances outside of an attorney’s control. For example, in one case our firm handled, our client—a young man whose arm had been crushed by a cinderblock wall that crumbled when he touched it—signed with us after firing the attorney he had initially hired. This meant that partner Frederick Aranki, who handled his case, made his initial investigation about 30 days after the accident—which is less than ideal. The results of his investigation showed why: the video footage no longer exists. A camera from a nearby store had been pointed directly at the accident scene, and the store owner was willing to help. Unfortunately, the footage had been deleted about a week prior.
Confronted with this problem, Aranki sought other sources of visual evidence. He subpoenaed the architect that built the wall, obtaining photos of the wall being constructed. These photos demonstrated that the contractor neglected to insert proper rebar framing which would have made the wall stable. Aranki also used images from Google Earth to show that the wall had been dangerously leaning in for some months prior to the accident. Thanks to these efforts, he and partner Daniel O’Toole were able to resolve the case for $9,000,000.
Hurdles in Finding and Retaining Witnesses
Depending on the type of case, different challenges arise in finding and retaining witnesses. The examples below highlight two types of scenarios which require separate investigative tactics.
Witnesses in Public Accidents
If your accident occurred on a street or sidewalk, there’s a possibility that your witnesses were on their way to another destination when the accident happened and didn’t take the time to linger at the scene. Different types of public accidents receive different levels of attention, too: a motor vehicle accident may be more memorable to witnesses than, for instance, a sidewalk trip and fall.
One way that our attorneys deal with these challenges is by revisiting an accident scene on the same day of the week, and at the same time of day, that an accident took place. The goal is to speak with people who travel that road as part of their daily routine—perhaps on their way to work or heading to pick up a child from school or daycare. This is best done as close in time to the accident as possible, since people’s routines tend to vary if even a small amount of time elapses. Memories are also obviously fresher closer in time to an accident.
Witnesses in Workplace Accidents
Witnesses, though easier to track down in workplace accidents, are more difficult to retain. It’s hard to get witnesses to cooperate with you if they’re concerned about their job security. This fear isn’t entirely unfounded—employers have been known to coerce employees into staying silent about what they saw.
Additionally, once litigation begins, the process of interviewing a witness that’s part of a case becomes a lot more challenging. If a plaintiff’s attorney wishes to informally speak with someone on the other side, he or she will need permission from the defense attorney. Many defense attorneys will not grant that permission. Instead, any interaction after litigation commences with a witness who is associated with the defense will usually be confined to a formal setting, like a deposition.
Given these challenges, our attorneys strive to interview work accident witnesses as early as possible. This not only prevents further obstacles, but also gives us the opportunity to counter the witness’s story should it change later during trial.
Challenges of Proving Damages Using Medical Evidence
In some cases, obtaining evidence to prove a client’s damages presents challenges of its own. To name a common obstacle, many clients who have suffered multiple injuries in the same accident are focused on the one that is causing them the most pain. They discuss only this injury with their doctors, failing to report the lesser injuries. This may lead to a scenario in which the plaintiff’s attorney sues for neck, back, and ankle injuries, only for the defense to insist that the plaintiff only suffered a back injury, citing medical records that don’t acknowledge the other problems.
Under these circumstances, examination by medical experts can prove invaluable. It’s also worthwhile to conduct a deep investigation into a client’s prior medical history to prove that none of the injuries were caused by earlier accidents—or, if they were, that the recent accident exacerbated them.
Investigations of medical history often prove challenging, particularly if a patient has switched practitioners or fallen out of touch with a former practitioner. But surfacing that evidence will allow your medical expert to work at his or her fullest capacity, since successfully proving damages will involve extensive comparison with the patient’s earlier condition.
Legal Moves to Preserve Evidence: Preservation Letters, Subpoenas, and More
For personal injury attorneys, securing evidence also comes down to knowing what type of requests to make and sending it to the right recipient as soon as possible. Experienced attorneys have a few go-to methods for rapidly retrieving this information.
Preservation Letters
A preservation letter alerts the recipient to his or her common-law duty to preserve evidence related to a case, while also outlining what that evidence is. By making the recipient’s duty to preserve evidence clear, preservation letters ensure that the recipient cannot later disclaim knowledge. If destruction or tampering of the evidence should occur, the fact that a preservation letter was issued creates legal consequences for the offender during trial.
FOIA and FOIL Requests
The Freedom of Information Act (FOIA) and the Freedom of Information Law (FOIL) are laws requiring that certain types of government records should be made available to members of the public upon request. While the Freedom of Information Act applies to federal agencies across the United States, the Freedom of Information Law applies to almost all government agencies in New York State.
A good attorney understands, not only what records are available through these requests, but how those records might help a case. Knowing what to ask for often requires out-of-the-box thinking. For example, in a bus accident case where direct footage was unavailable, partners Stephen Murphy and Michael Hurwitz made a FOIL request for light cycling data—the data depicting which traffic light signals had flashed at which times over the course of the day. They were able to match the light cycling data to the only existing footage of the incident, which did not depict the accident, but showed our client waiting on the curb to cross the street moments before the bus hit him. By doing so, they showed that he had the right of way when he crossed the street.
This data not only bolstered our client’s story, but effectively disproved a story told by an unreliable witness, resulting in a $9,500,000 settlement for our client on the eve of trial. In its own way, the light cycling data proved just as effective as direct footage of the accident would have been.
Subpoenas for Records
Once a trial date is set, your attorney will also have the option to serve a “Subpoena for Records.” Unlike preservation letters and FOIL or FOIA requests, a valid subpoena is notarized—whether by an attorney or by the judge in the case—and has the authority of the court behind it.
Nonetheless, unlike criminal lawyers—who are often able to have their subpoenas served by the police—civil lawyers, including personal injury attorneys, sometimes face challenges in having a subpoena taken seriously. An experienced civil attorney is relentless when it comes to getting subpoena results and will follow up as many times as needed to ensure that the necessary records are delivered.
Case Study: Bus Accident Resolved Through Tireless Pursuit of Evidence
Whenever a legitimate FOIA or FOIL request is submitted, the recipient has a legal obligation to make the requested information available. However, it’s common for long delays to plague this process at the best of times. When the agency receiving the request is also a defendant party in the case, they may try to put off delivering the requested records for as long as possible.
Block O’Toole & Murphy partner Daniel O’Toole experienced this frustration when he represented an MTA bus passenger injured in a collision with a flatbed truck. Both the MTA and the owner of the truck disclaimed responsibility for the collision, each telling a story which portrayed the other party as the sole cause of the accident.
During the process, O’Toole suspected the MTA—which had conducted an immediate investigation following the accident—of holding back information relevant to the case. He spent the discovery phase of the case serving and following up on FOIL requests for photographs their investigators had taken at the scene, as well as other documentation. All of his requests were ignored.
When, at last, a trial date was scheduled and the case began to move forward, O’Toole didn’t give up on obtaining the documents. Having a trial date on the calendar meant that he could serve court-ordered trial subpoenas for the same documents, which he did. Even with the authority of the court at his back, O’Toole spent the first three weeks of the trial sending daily reminders to the defense that they needed to comply with the subpoenas.
It wasn’t until the third week of trial that the MTA’s defense attorney finally handed O’Toole the documentation he had requested, including the photographs. Thanks to these photographs—which told a very different story from the one the MTA had claimed—O’Toole was able to hold the MTA 90% liable for the accident. They agreed to contribute $3,900,000 to a settlement that also included $2,100,000 from the primary and excess insurers of the flatbed truck, adding up to a $6,000,000 settlement for our client.
This result was only possible because O’Toole remained undeterred from his original intention. Rather than discourage him, the evasiveness of the defense alerted him to the fact that he was on the right track, encouraging him to continue pushing.
To Know What to Look For, You Need to Know the Law
Doing right by a client not only involves conducting the earliest and most thorough investigation possible but also having a full understanding of the nuances of personal injury law, which is crucial to figuring out what evidence to look for.
For example, in one wrongful death case our firm handled, a sanitation truck driver suffered a seizure while driving, causing him to hit and kill two pedestrians, one of which was our client. The sanitation truck company claimed that their lack of awareness of the driver’s condition meant that they were not responsible for the accident.
However, our handling attorneys had studied the regulations laid out by the Federal Motor Carrier Safety Administration (FMCSA) for the safe operation of heavy trucks like the one that hit our client. They knew that the company hiring the sanitation truck had been required by federal law to obtain past employment records before making any hires, and they requested these past employment records as part of their evidence collection.
These records showed that the driver had been fired from a similar job after having a seizure while operating a truck. Had his employers fulfilled a basic duty to screen potential drivers, they would have known that they had a responsibility not to hire him. Thanks to this clear evidence of negligence which led to two tragic and preventable deaths, we were able to obtain a $5,000,000 settlement on behalf of the decedent’s surviving children.
Free Legal Consultation
If you or a loved one has been injured in an accident, the attorneys at Block O’Toole & Murphy offer free legal consultations to accident victims. To speak with an experienced lawyer, call 212-736-5300 or by filling out our online contact form. We serve New York and New Jersey.