If you’ve been involved in a car accident by no fault of your own, North Carolina law gives you the right to recover for any injuries or losses you have suffered. In order to recover, however, you will have to prove both (a) the liability of the other party and (b) your own damages, meaning the extent of the injuries and/or losses that you have suffered.
The best way to prove your claim is through the use of evidence. This article will discuss the common types of evidence in a personal injury claim. It will also explain how these items can be helpful in proving your right to recovery.
In a general sense, settling your claim with the at-fault driver’s insurance provider is favorable to immediately filing a lawsuit. Settlement negotiations are less formal, less expensive, less time-consuming, and they allow the parties more leeway in determining the amount of recovery. With that being said, you will want to prepare your evidence and your claim as if you are heading for trial. In this setting, as the party asserting a right to recovery, you will assume the role of the “plaintiff.”
Under North Carolina law, the plaintiff bears the burden of proving to the finder of fact – either the judge or jury – that the events alleged actually occurred and that these events give rise to a right of recovery. In civil (meaning non-criminal) actions, you will be required to prove each element of your claim by the preponderance of the evidence. “Preponderance of the evidence” means that it is more likely than not, or at least 51 percent likely, that the alleged acts did in fact occur. While this standard is not as stringent as the “beyond a reasonable doubt” standard used in criminal courts, it is important for you to be aware from the start that you bear the burden of proving your claim.
You prove your right to recovery by showing evidence that supports your version of events. All too often in car accidents the only evidence offered is the conflicting testimony of the drivers involved. Each one contradicts the other, and the insurance adjuster ends up denying the claim because of the lack of proof that his or her insured actually caused the accident. By collecting as much supporting evidence as you can, you can try to overcome this issue, maximize your chances of receiving a favorable settlement and put yourself in great position in the event that a lawsuit is filed in the future.
Typically, you should look for any piece of evidence that helps your claim, no matter how trivial or inconsequential it may seem. You may have heard the saying, “The devil is in the details,” and it couldn’t be truer when it comes to your personal injury claim. The smallest shred of evidence could ultimately be a deciding factor in whether or not you recover for your injuries. There are many types of evidence available to you, and while some will inevitably be more helpful than others, you should always conduct a thorough investigation of any potential evidence.
The term “physical evidence” describes anything that is tangible: an object that you can touch, pick up or hold in your hand. In the context of a car accident, the most common piece of physical evidence is a damaged vehicle. Dents, scrapes, blown tires or shattered glass can establish both the fact of the collision and, often, the severity of the collision.
Physical evidence that is personal to you can also be instructive in showing the fact and extent of your injuries. For example, the clothing you were wearing at time of the accident may have been damaged, torn or even bloodied by the force of the collision or by the injuries that you suffered as a result. It’s also not uncommon for glasses to be broken or shattered by the impact of an airbag.
The most important thing to remember about physical evidence is that it doesn’t last. Even within a few days after the accident, pieces of physical evidence can be repaired, washed, destroyed or lost. It is imperative that you collect physical evidence – or at the very least, photograph it thoroughly – as soon as you possibly can after the accident occurs. While physical evidence rarely tells the whole story behind a car accident, it can often be some of the most persuasive evidence available.
Generally, when you are in an accident in which injuries or damage to your vehicle has occurred, the police will be called to the scene. Once he or she arrives, the responding officer will likely survey the damage, investigate the scene, interview any witnesses and create a “crash report” (technical term is a DMV-349 report) that memorializes relevant details of the accident. The DMV-349 will include an assortment of relevant information, including the date and location of the accident, weather conditions, the mechanics of the accident, any contributing factors and contact information for any eyewitnesses. For more information on obtaining, amending and using your crash report, please see our comprehensive series of articles on crash reports.
Crash reports can be one of the most valuable tools available to you in settlement negotiations. For instance, if the crash report assigns contributing circumstances to the other driver and doesn’t list any contributing factors on your part, you can provide this information to the insurance adjuster as a powerful incentive to work toward a settlement with you instead of taking the dispute into a courtroom.
It is all too common that the only evidence offered in a personal injury claim arising out of a car accident is the testimony of the two drivers involved in the accident. When this occurs, typically it becomes a “he said, she said” type of battle, likely resulting in both insurance companies denying liability. One major reason for this is that North Carolina still recognizes the doctrine of “contributory negligence,” meaning that your right to recovery is denied if you shared even one percent of the fault in causing the accident. When the at-fault driver accuses you of sharing in the liability, and your statements to the contrary are unsubstantiated by the evidence, the adjuster will likely deny the claim. For more information, see “Locating and Interviewing Witnesses.”
One of the best ways to bolster your account of the accident is to provide corroborating statements from as many witnesses as possible. While this involves a degree of “leg work,” eyewitnesses can provide some of the most valuable evidence there is when it comes to proving your right to recovery.
Just like with physical evidence, it’s important to gather information about eyewitnesses as soon as possible after the accident occurs. Many people will leave the scene immediately, and it’s relatively rare for anyone to stick around for more than a few minutes. It’s also imperative to preserve a witness’s account of the accident while his or her memory is fresh. If you’re able, speak with those present at the scene and take note of their contact information so that you can obtain a statement from them later. If you’re too injured to do this, ask someone at the scene to do so for you. Also, witnesses present on the scene are often listed on the DMV-349 crash report. Be sure to obtain your copy of this report and contact that witness as soon as you are physically able.
It may seem strange, but you are an eyewitness to the accident, as well. Make sure to document your account of the accident as soon afterward as you can. It’s possible that the insurance adjuster may ask you to provide a recorded statement about the accident. Remember that outside of certain situations – such as when you open your claim under your own policy’s Uninsured/Underinsured Motorist Coverage – you are not required to provide a recorded statement, and declining to do so generally will not damage your claim. For more information on this, please see our article on “Dealing With a Claims Adjuster.” If you have been asked to provide a recorded statement and are unsure as to whether or not you should do so, please consult with an experienced personal injury attorney in your local jurisdiction.
Photographic evidence can be invaluable to your claim, yet it is often either utilized incorrectly or not utilized at all. When used correctly, photographs and video can allow for an easier reconstruction of what occurred and may give the adjuster a better understanding of the scene of the accident, damage to vehicles and the extent of your injuries. Your claim should include a thorough photographical record covering several different topics.
If you can, it’s important that you take plenty of pictures at the scene of the accident. Most of today’s smartphones include a camera feature; if yours doesn’t, I recommend keeping a digital camera in your vehicle in case of an accident. Take plenty of pictures of the scene from as many different angles as you can. Try to include a time and date stamp on the pictures; if this isn’t an option, the digital file should include the time and date the picture was taken. Make sure that you take pictures of any skid marks, damage to all involved vehicles and any damage to the surrounding area. If you miss something, it’s OK to return to the scene; however, remember that evidence is fleeting, and it is very important to preserve your evidence as quickly as possible.
It is also crucial that you keep a thorough visual record of your injuries. Whether you have abrasions, lacerations, bruises, broken bones or otherwise, pictures of your injuries can provide a major boost to your claim both at the settlement and trial levels. Continue to take pictures as your injuries heal; this shows a complete timeline of recovery and communicates the extent of the pain and suffering you have experienced.
Photographic evidence isn’t restricted to still photos. Video footage is commonly regarded as the “gold standard” in the evidence world because of its general reliability and tendency to convey a complete impression of what transpired. For these reasons, you should also seek to collect any video evidence available to you. It’s a good idea to start by locating any businesses that may be in the line of sight of the scene of the accident. Many businesses, such as gas stations, banks and ATMs, record surveillance video, and it is possible that any surveillance footage could include a recording of the accident itself. Be aware that many businesses have a policy against providing surveillance video to third parties without a subpoena (meaning that you would need to file a lawsuit), but given the value of any surveillance video that might exist, you should still ask to be sure.
Video can also be valuable at the scene of the accident. You can record video to show the general flow of traffic, the position of the vehicles involved, and any injuries that are immediately apparent. You can also make a video recording of eyewitnesses describing their perception of the accident.
If your injuries are affecting your day-to-day lifestyle, you can also record what’s known as an “Activities of Daily Living” video. These videos typically include a recorded statement of what your daily life was like before the accident, how your daily life has changed since the accident and example footage showing the difficulties that your injuries are causing. For instance, you can include footage of any limping or decreased mobility and examples of how these afflictions affect your ability to go about your daily life. Be aware that these videos can be expensive to record and produce, and as a result they are rarely used outside of a courtroom setting.
Medical bills and records are used in practically every personal injury claim because they establish a consistent account of when and where you were treated, which providers you were treated by, and what treatment you received. With this in mind, make sure that you seek medical attention immediately after the accident, even if it is to just get checked out. Waiting too long to seek medical treatment can have a drastic affect on any personal injury claim that you may have. For more information, please feel free to visit the following article “Importance of Seeking Medical Treatment.”
As helpful as these records can be, however, keep in mind that your medical records may also contain information harmful to your claim. The most common problem that we run into is allegations of “pre-existing conditions.” Insurance adjusters often allege that pre-existing conditions may negate causation in car accidents (meaning raise doubt that your injuries were actually caused by the car accident), and you should carefully review your records to minimize the risk of this happening.
Another issue arises where the medical records show gaps in treatment. If an injured party goes to the emergency room the day of the accident, doesn’t seek any further treatment for six months, and then opens a personal injury claim, the adjuster will look at the claim with a great degree of skepticism. To avoid this issue, make sure that you seek consistent treatment, fully comply with your doctor’s recommendations and make sure to fully disclose every injury suffered in the accident at every treatment visit. This will help to ensure that your medical records are consistent and supportive of your claim.
Another good way to support your claim is to keep a diary of your injuries and treatment. Write in the diary every day, documenting each provider you have been treated by, all treatment you’ve received and how your injuries are progressing. Make sure to include your mental condition, and document any stress, sleeplessness, depression and anxiety that you may be feeling. Pain and suffering can be hard to document, but journaling is an efficient way to do so.
Depending on the severity of your injuries, it’s possible that you may have missed work either to receive medical treatment or because of incapacity. If this is the case, you are entitled to recovery for your lost wages, provided that you can show (a) that you missed time as a result of injuries suffered in the accident, as well as (b) the value of the time that you missed from work.
To show that you missed time at work as a result of your injuries, you will need a doctor’s note. Make sure that the doctor’s note appears on his or her formal stationery, and that it includes each date for which you are instructed to miss work – and the fact that you are being instructed not to work as a result of your injuries. Make sure not to claim more lost time than what the doctor’s note prescribes.
To show the value of your missed time, you will need to obtain a verification of lost wages from your employer. This verification should include the amount of time missed, the dates you didn’t work, the hours you were scheduled to work on those days, the amount of wages you would have made and a breakdown of your wages. For more information about lost wages, please see our series of articles on Lost Wages.
Expert witnesses typically don’t enter the conversation until a claim becomes a lawsuit, and even then, only when liability is the main issue in the case. Though their testimony is generally informative, expert witnesses tend to be very expensive, and there is no guarantee that their expert opinion will help to bolster your claim. However, there are several types of expert witnesses commonly used in personal injury lawsuits, and in a closely contested case, they could end up making all the difference.
Medical doctors commonly serve as experts testifying as to whether a plaintiff’s injuries were actually caused by the car accident. Based upon their extensive training and expertise, a doctor can offer an informed opinion regarding whether an injury pre-existed the accident or resulted from something other than the defendant’s negligence.
Accident reconstruction experts are generally engineers who use their knowledge and training to recreate the accident and testify as to what the cause of the accident was. Accident reconstruction engineers use every factor available to them, from traffic patterns to the tread on each vehicle’s tires.
Human factors experts come into play when things like reaction time are contested. A human factors expert can testify as to each driver’s perception based upon weather, lighting, angles, etc., the amount of time it would take for the driver’s brain to receive, process and react to sensory input, and whether the driver could have reasonably taken steps to avoid the accident.
Life care planning experts are often hired to testify as to future damages. If you’ve been catastrophically injured in a way that will affect your day-to-day life for the foreseeable future, it’s likely that the insurance company will disagree with you as to what your future damages are worth. A life care planning expert in this case can be very instructive as to how much your post-injury lifestyle will cost, helping the jury to determine the amount of future damages that you are entitled to.
If you’re at a point in your claim where you’re considering hiring an expert witness, we recommend strongly that you speak with an experienced personal injury attorney in your jurisdiction. If your case is contested enough that expert witnesses are coming into play, it is likely that a lawsuit will be necessary.
Remember that, although some evidence will be more valuable to your claim than others, you should collect every piece of evidence that you can. Take lots of pictures, keep a detailed diary and over-document everything. Though your immediate goal is to negotiate a fair settlement without necessitating a lawsuit, prepare your evidence as if you’re going straight to court. Be reasonable with adjusters. Remember that they are people too, and as such they will be likely more willing to work with someone who is nice and respectful.