Preservation Letters’ Vital Role in Personal Injury Cases

Every legal case depends on evidence, and evidence in personal injury cases is perilously easy to lose or discard. Accident scenes are tidied up, wrecked cars and defective construction devices are sent to the junkyard, and data from black boxes or surveillance cameras is automatically taped over or erased. This impermanence is not only a problem in itself, but creates an ideal environment for deliberate destruction of evidence to occur without being detected. If you are involved in a personal injury case, sending one or more preservation letters is among the first steps that a good attorney is likely to take on your behalf.

A preservation letter is a written notice which a legal team uses to alert others to their duty to preserve evidence that may be important to a case. Also known as a preservation notice or a preservation demand, a preservation letter puts the recipient on notice of his or her duty to preserve evidence, while ensuring that he or she knows the precise evidence that needs to be retained. 

Need to Know:

• A preservation letter alerts the recipient to a common law duty to preserve evidence.
• Preservation letters are critical to many case areas, and attorneys with experience in these areas know exactly how such letters should be written and issued to obtain the best results.
• The successful resolution of many personal injury cases has hinged on rapid action in issuing a preservation letter.

In This Article:

• What Legal Significance Does a Preservation Letter Have?
• What Does a Good Preservation Letter Need?
• What Evidence Does a Preservation Letter Seek?

What Legal Significance Does a Preservation Letter Have?

In any situation where litigation is likely, every person concerned has a common law duty to preserve evidence to the best of his or her ability. By “common law,” we mean that no written law exists to this effect due to the ambiguities that would arise when attempting to impose it. (How likely should the possibility of litigation be, for example, before a person might be obliged to preserve evidence? How deeply involved in an incident should any individual be before the obligation would apply? What constitutes evidence in the particular case, and who is aware of it?) Instead, a court may use legal precedent to create consequences for a person found to have deliberately destroyed evidence, should such a case go to trial.

There is nothing to be gained, however, from leaving preservation of evidence up to chance. By serving a preservation letter, a legal team ensures that persons with the duty and ability to preserve evidence know exactly what is expected of them.

Evidence destruction and tampering where such notice exists—otherwise known as spoliation of evidence—has firmer legal consequences for the offender, which may include sanctions during a case itself and punishment, such as the issuing of a fine, outside of it. Potential sanctions at trial include an “adverse interference” charge, which permits a jury to infer that the missing piece of evidence would have been unfavorable to the party that failed to preserve it. In more extreme circumstances, depending on the culpability of the defendant who failed to preserve the evidence, the party may even have his or her “answer stricken,” which severely hampers the defense by preventing that defendant from introducing any evidence or calling any witnesses at trial. Under NY’s Civil Practice Law and Rules (“CPLR”), judges have a certain amount of discretion to craft a sanction that fairly addresses the failure to preserve evidence, given the nature of the party’s conduct and the extent of its prejudicial impact on the party seeking the evidence.

The best advantage of a preservation letter, however, is that it tends to discourage spoliation from happening at all. By defining the situation surrounding preservation of evidence and making the needs and intentions of the legal team clear, a good preservation letter reduces honest mistakes and forestalls dishonest behavior.

What Does a Good Preservation Letter Need?

The basic preservation letter introduces the person or entity being represented and explains what evidence is needed and why. Because a preservation letter does not create a new duty for the recipient from a legal perspective, but makes the recipient aware of a duty that he or she already has, no special authorization is required to write a valid preservation letter. Writing an effective preservation letter, however, requires legal expertise.

Preservation letters need to be prepared and issued quickly, and the best succeed in walking a somewhat fine line. They must adhere to formula without being boilerplate, convey authority without being overly technical, and outline what may be a complex situation without bombarding the recipient with legalese.

Since preservation letters are a feature of many cases, an experienced attorney develops an instinct for the language that best obtains the desired results. Furthermore, the signature of an attorney is, in itself, a valuable feature of a preservation letter, since a letter from an attorney is far more likely to be taken seriously by the recipient.

Because time is of the essence, our attorneys serve preservation letters as soon as possible—sometimes within an hour of signing the case. We take steps to ensure immediate delivery while obtaining proof that the letter made it to the intended recipient—whether by serving the letter in person and asking the process server to prepare an affidavit of service, or by sending via overnight or certified mail and requesting a return receipt. In the event that spoliation occurs, this proof may serve as evidence at trial.

What Evidence Does a Preservation Letter Seek?

While just about any type of personal injury case may call for a preservation letter, such notice tends to be particularly relevant to certain case areas. In premises liability cases, for instance, our attorneys strive to preserve the defect that caused the accident.

In construction accident cases, we typically seek to preserve defective equipment—such as ladders and scaffolds—or vehicles involved in the accident for expert examination. To name an example of a case we dealt with that relied on such evidence, we dispensed preservation letters to the owners of a construction site to preserve a Bobcat utility vehicle following a wrongful death case in which a young man was crushed under its arm. Construction site operators tend to alter, sell, or otherwise dispense with vehicles after they have been involved in this type of tragedy, and the expert inspection we needed to arrange for would have quickly become impossible if we had not taken the action we did.

Preservation notice is particularly crucial to the field of motor vehicle accidents, in which it has a variety of applications.

• Verifying or disproving testimony: To confirm or refute statements from victims, defendants, and eyewitnesses, it is often necessary to preserve the vehicle involved for expert examination. For example, suppose the defendant in your motor vehicle case claims that he ran a red light because his brakes failed. Your attorney will want to ensure that the vehicle is examined by a mechanical expert who can determine whether the brakes were malfunctioning at the time of the accident.
• Accident reconstruction: Most modern vehicles store “black box” data about speed, throttle position, brake usage and other details of vehicle operation highly valuable to accident reconstruction experts.
• Securing vital footage: In many cases, the most reliable witness to an accident is not a human being, but a security camera attached to a nearby restaurant, shop, or property. Whenever possible, Block O’Toole & Murphy’s attorneys, along with the investigators they retain, travel directly to an accident scene as an initial step in their investigative process. One of many advantages of this approach is the opportunity to look for cameras—and to determine who owns them—before any footage is automatically erased.

Many motor vehicle accident cases handled successfully by our firm have relied on the rapid action of our attorneys to secure this type of evidence, which is highly transient—particularly camera footage, which may be automatically taped over after any period of time from two weeks to 24 hours.

In one case that Block O’Toole & Murphy handled, our client, a woman of nearly 80 years old, suffered traumatic brain injury after being hit by a vehicle while crossing McGuinness Boulevard, notoriously one of the deadliest roads in New York City. Our client, who had a degree of negligence in the incident because she was not using the crosswalk, could easily have been held fully liable for her accident. By sending a preservation letter to a nearby travel agency, our lawyers recovered footage from one of the agency’s security cameras which proved that the defendant was driving over the 25 miles per hour speed limit. The New York Police Department—which investigated the case at the same time we did due to its relevance to the city’s attempts to improve McGuinness Boulevard—did not secure this footage during their parallel investigation. Yet within two months, our handling attorneys were able to convince the defendant’s insurance company to tender its full $1,250,000 policy on our client’s behalf—all because of one video.

In another case, we were able to achieve an $8,000,000 settlement for a client hit by a tandem bus because of a combination of black box data from the bus and footage obtained from a camera associated with a Popeyes restaurant. The testimony of both the defendant driver and our client—who had been impaired by alcohol prior to the accident, and was understandably confused following it—would have, if taken at face value, made our client solely liable. The footage from the camera, which we obtained using a preservation letter, completely changed the direction of the case by showing that our client was visible and had the right of way.

The experienced attorneys at Block O’Toole & Murphy are committed to immediate and thorough investigation on behalf of personal injury clients throughout New Jersey and New York. Contact Block O’Toole & Murphy to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.