Evidence destroyed? Do I still have a case?

What happens when evidence is destroyed in a case?

Spoliation of Evidence: what is it and what can you do about it?

Mark Perenich is a personal injury lawyer in Clearwater he has more than 30 years experience with various cases from Car accidents to Medical malpractice.

What is ‘spoliation’ of evidence?

Spoliation is the alteration, destruction or loss of evidence which is involved in litigation.

What example can be given of spoliation of evidence?

A creditor who is suing for the payment of a sum of money on a contract has in his safekeeping the only copy of the contract which was signed by the debtor. If during discovery or litigation the debtor’s lawyer borrows the only signed copy of the contract and loses it when his briefcase is taken by a mugger, there is spoliation of evidence. If the office of the debtor’s lawyer burned down to the ground, the contract is destroyed by fire; there is also spoliation of evidence. If the contract which was in the office safe was not destroyed in the fire but the ink was smudged due to water damage so that the contract’s contents are illegible, then there is also spoliation of evidence as it was altered.

What is the effect of spoliation of evidence?

When an object which is supposed to be presented as evidence is spoliated it is not only destroyed, altered or lost, it becomes unavailable for a party to use to prove his claims. Depending upon the importance of the evidence to the litigation and depending upon the good or bad faith of the party who lost it, the party who was disadvantaged by the loss, alteration or destruction of the evidence is given the recourse of suing the spoliator – he may also be sanctioned by the court.

Is the loss, alteration or destruction of all kinds of evidence sanctioned?

No, the evidence must be key evidence and it must be essential to the subject of the litigation. In the example above, the contract is a key piece of evidence and essential to prove the creditor’s claims. The creditor is disadvantaged because the contract which was reduced to writing is the best evidence of the particulars of the agreement between him and the debtor. The signature of the debtor is the best evidence that he has agreed to be bound by the agreement. Unless the creditor can prove the contents of the agreement through a photocopy or by an exchange of letters or emails between the creditor and the debtor, he will not be able to prove his claims.

Wrongful Death Stautes

What kinds of sanctions can be imposed on the spoliator?

In the example above, the debtor may claim that sum of money the creditor was suing for should not be paid as he had not delivered the goods in exchange for the sum of money. The pleadings or documents filed in court by the debtor to prove his alternative defense of non-delivery of goods may be stricken from the record.

If the debtor filed a counterclaim in damages against the creditor, his counter claim may be dismissed. If the debtor assailed the genuineness of his signature on the document and presented the testimony of a handwriting expert, the expert testimony based upon the missing or destroyed evidence may be stricken from the records. The debtor may be declared to be in default and will therefore lose his right to present his own evidence. Or, an evidentiary presumption may rise against him.

What happens if the spoliation is inadvertent or accidental?

In determining the sanction to be imposed, the court takes into consideration not only the importance of the evidence to the subject of the litigation but also the motives of the spoliator. Bad faith is when the party deliberately destroyed or altered the evidence to deprive the opposing party of his right to prove his claim.

In the example above, the debtor’s lawyer lost the document because he was mugged and the contents of his entire briefcase was taken by the mugger. Unless the story of the mugger was fabricated, it cannot be said that the loss of the copy of the contract was intentional, deliberate or calculated to deprive the creditor of his just claims. There can be no bad faith attributable to the debtor’s lawyer.

What are evidentiary presumptions and how do they work as sanctions?

There is a saying that evidence withheld is presumed to be unfavorable if produced. That is to say when bad faith attended the loss, destruction or alteration of an essential piece of evidence, the court will deem the loss, destruction or alteration of the evidence to have been accomplished because it was unfavorable to the spoliator.

In the example above, if bad faith on the part of the debtor or the lawyer is shown, the court will deem that the debtor or lawyer destroyed, lost or altered the contract because if it had been produced in court, it will be adverse evidence against the debtor.

Why is spoliation sanctioned?

Imposing sanctions on the spoliation of evidence in bad faith maintains the integrity of the court system. If such acts were not sanctioned, any person can defeat claims against him by simply destroying evidence. Also, the court has an interest in seeing that evidence is preserved because courts cannot decide cases if evidence goes missing or is destroyed. Missing evidence delays the disposition of cases by the court.

In the example above, lawyers are officers of the court and they have a duty and accountability before the court to maintain the integrity of the legal processes. They are supposed to maintain fair play in their dealings especially in keeping documentary evidence safe.

If you have any questions about this or any personal injury case please contact Mark at 727-386-9677

Car accident attorney and On types of Car accident injuries

Mark Perenich in a Car Accident Lawyer in Clearwater

Here are some interesting facts I have come across about car accidents and there injuries related to them.  This is interesting because not all injuries come from another vehicle, sometimes an injured person will not know whether or not they can make a claim against their auto insurance.  Some times you can.  If you need help making that determination call Mark today 727-386-9677

car accident

It’s ??rf??tl? normal t? feel a bit n?rv?u? ?b?ut g?tt?ng ?nt? ?n auto ????d?nt ???h t?m? ??u g?t behind the wheel. Or m??b? even just going ?ut f?r a w?lk, ?? approximately 74,000 ????l? ?r? ?tru?k by a v?h??l? in the U.S. ???h ???r.

It turns ?ut, however, there are ?l?nt? ?f other ?njur??? m?r? l?k?l? t? ???ur, some l??? h?rmful, some m?r? ??. All ?n ?ll, though, ??u’r? most likely to ?l?m your f?ng?r in the d??r when the ??r ??n’t ?v?n m?v?ng.

In D??th: M??t Common Car-Related Injuries

At nearly 150,000 incidents ??r ???r, injuries ??u??d b? a closing d??r are the most ??mm?n ?ut?-r?l?t?d ?njur?, according t? a r???rt r?l????d ???t?rd?? b? the National Highway Tr?ff?? S?f?t? Administration. Th? r???rt evaluated the type and amount of n?n-tr?ff??-r?l?t?d injuries nationwide, the first time the g?v?rnm?nt agency has compiled ?u?h data.

Al?ng with those 150,000 people who injured themselves closing a ??r d??r, another 10,000 ???h ???r are ??r??u?l? ?njur?d when u??ng a j??k ?r ?th?r t??? of hoist. A full 74,000 ?r? ?njur?d b? a f?ll?ng vehicle or v?h??l? ??rt.

“I d?n’t think ?n??n? until n?w had ?n accurate ??n?? of the ?xt?nt ?f v?h??l?-r?l?t?d ?njur??? ?nd fatalities that d?d n?t ???ur on a ?ubl?? h?ghw??,” ???? R?? Tyson, a ???k??m?n f?r NHTSA. “It ??rt??nl? underscores the r??k? that ?x??t in a v?h??l? whether ?t’? on the road ?r ?ff, ?nd I h??? ?t w?ll call ??m? ?tt?nt??n t? ??m? of those ???u??.”

Behind the Numb?r? On Car Accident Injuries

Data f?r the r???rt w?r? compiled by the NHTSA, the tr?ff?? ?rm of the U.S. Department ?f Transportation. They were ??ll??t?d ?r?m?r?l? through police reports in 2007, d??th certificates and the number of f?t?l?t??? r?g??t?r?d b? the N?t-?n-Tr?ff?? Surveillance ???t?m, a virtual data ??ll??t?r ?f d?t??l? regarding non-traffic ?r??h?? n?t??nw?d?.

Wrongful death and Car accidents

R????r?h?r? estimated ?n ?nnu?l total ?f 1,747 fatalities and 841,000 ?njur??? due to n?ntr?ff?? ?r??h?? and non-crash ?n??d?nt?. Non-traffic ?r??h?? ?n?lud? b??k-?v?r ?r??h?? ?nd ??ngl?-v?h??l? ?r??h?? that did n?t occur ?n a n?t??n?l h?ghw??.

An ??t?m?t?d 98,000 injuries ???ur ?n n?ntr?ff?? ?r??h?? ?n private roads, collisions w?th ??d??tr??n? ?n driveways, and two-vehicle ?r??h?? ?n ??rk?ng f???l?t???, the report ???d, while 743,000 ?njur??? happened fr?m n?n?r??h incidents like h???rth?rm?? ?nd ?l??tr??ut??n.

Unfortunately, ????d?nt? that h????n while the ??r ?? parked or ?mm?b?l? are not ??v?r?d by ?ut? ?n?ur?n??, ????rd?ng t? Sam B?ld?n, v??? president ?f Insurance.com. “The short ?n?w?r ?? that ?f someone is driving, ?t’? ??v?r?d,” B?ld?n ????. “It’s a pretty bl?nk?t statement.”

Second ?n the l??t ?? ?v?r?x?rt??n, ??u??ng 88,000 injuries ?nnu?ll?. Th? category ?n?lud?? l??d?ng and unloading cargo ?r ?u?h?ng a disabled v?h??l?.

Dave Salmon, d?r??t?r ?f traffic services f?r th? New York State Police, says the l?tt?r ?? ?lw??? a bad ?d??, especially dur?ng th? w?nt?r. H? r???mm?nd? using k?tt? l?tt?r and a small ?h?v?l t? g?t tr??t??n ?n ?n?w and ice–not ??ur buddy pushing the v?h??l? from b?h?nd.

“It’? ??m?th?ng that ??n b? a dangerous ??tu?t??n,” Salmon ????. “The b??t thing t? d? ?? tr? t? g?t out ?n your ?wn first by u??ng those t??hn??u?? and tr??ng b? r??k?ng your car b??k and f?rth gently. It’? so ???? for someone t? slip on the ice ?nd f?ll d?wn ?nd get run ?v?r.”

Pedestrian S?f?t?

L?k? injuries fr?m ?u?h?ng cars, m?n? ????d?nt? ??t?d ?n the report d?d n?t h????n t? the person driving the v?h??l?. On?-th?rd of the n?ntr?ff?? ?r??h injuries involved ??d??tr??n? ?nd ???l??t?. Accidentally b??k?ng ?v?r ??m??n? ????unt?d f?r 14% of injuries; children, d?ff??ult t? ??? in bl?nd spots, ?r? ?ft?n the v??t?m?.

N??rl? 50% ?f children ?njur?d ?n b??k-?v?r ?n??d?nt? ?r? b?tw??n the ages ?f 1 ?nd 4, ????rd?ng to research fr?m D??rnb??h?r Ch?ldr?n’? Hospital ?n P?rtl?nd, Ore. F?rt?-??v?n percent ?f those ????d?nt? h????n ?t home, while ?n?th?r 40% h????n in driveways ?r ??rk?ng lots.

If you liked this story, r??d:

M??t D?ng?r?u? T?m?? To Dr?v?

Am?r???’? M??t Dangerous Jobs

T?n D??dl? Mistakes Of W?nt?r Dr?v?ng

 

M?tth?w Gareths, a ???k??m?n for the Ch?ldr?n’? Safety Center at D??rnb??h?r, says ?ut?-r?l?t?d injuries ?r? ?m?ng the most ??mm?n ???n ?t the h????t?l. M?n? of them, l?k? hyperthermia (37 d??th? ??r ???r, m??t ?f them ?h?ldr?n) ?nd b??k-?v?r? (221 fatalities ??r ???r), ??uld b? ?r?v?nt?d b? forming safe d??l? r?tu?l?, h? ????.

“It’s m??tl? br??k? ?n r?ut?n?” th?t cause un??f? ??tu?t??n?, G?r?th? ????. “Because Americans t?nd to b? ?tr?t?h?d v?r? thin, ?t can be easy to f?rg?t ??ur child.”

Th? good news, h?w?v?r, ?? th?t m??t ?ut?-r?l?t?d ?njur??? ?r? preventable. Maintaining ?ut? ??rt?, using common ??n?? ?nd ?t???ng focused ?n the driveway or parking lot g? a l?ng w??.

Understanding basic car maintenance ??uld h?v? ?r?v?nt?d ??m? of th? 9,000 injuries ??u??d b? burn? fr?m radiator ?nd antifreeze fluid, T???n says. Th??? wh? d?n’t release th? pressure ??r?full? ?r w??r glove? while doing so ??uld g?t a bl??t of l??u?d m?r? than 200 d?gr??? ?n t?m??r?tur?.

In ?th?r w?rd?, ?v?n the simplest things ?h?uld b? done w?th ??r?. S?v?ng a f?w minutes ?n the driveway b? n?t reading an owner’s m?nu?l ?r l??v?ng cargo unsecured ??n’t w?rth th? risk.

 

The Importance of Uninsured Motorist Coverage in an Auto Accident

Mark Perenich Clearwater Personal Injury Lawyer

Do you know the importance of uninsured motorist coverage?

Many people are unaware if they even have uninsured motorist coverage, and in my opinion, it’s one of the most important types of insurance to have. Hopefully after reading this you will have a general understanding of uninsured motorist coverage and why you need it.
Q. What is uninsured motorist coverage?
A. Uninsured motorist coverage provides for a driver to receive damages for any injury he or she receives from an uninsured, negligent driver. This type of coverage is typically added to a driver’s current policy. In the event of an car accident, the insurance company pays the difference between what the uninsured driver can pay and what the injured driver would be entitled to as if the uninsured motorist had insurance.
Q. What losses does UMC cover in the event of an auto accident?
A. Uninsured motorist coverage is meant to compensate you for both financial and non-financial losses that occur in result of an accident. This includes any medical expenses, lost wages, pain and suffering, vehicle repair, and other out-of-pocket expenses.
Q. Who does it cover?
A. Generally it will cover yourself, any household members, minors, and family members that may not reside in the house (i.e. children in college).
Q. Why is it so important to have uninsured motorist coverage on your auto insurance policy?
A. Because there are many drivers that are driving without insurance, in Florida 24% of drivers are without coverage. And if the other driver does have coverage it may be limited to only $10,000. If you get into an auto accident requiring an ambulance ride ($3,000-$8,000) or worse, a helicopter ride to the near by hospital ($10,000-$20,000), there may not be enough in the other driver’s policy to cover just your transportation let alone your medical expenses. In my career I have seen many people that cannot recover any damages, in order to cover large medical bills and lost wages, because they did not have uninsured motorist protection. It can make a tragic accident a life long burden.
Q. How do I protect myself from an uninsured driver?
A. Call your insurance company and ask them if you have uninsured motorist coverage. If you do not, ask to add it to your policy it is usually a very low increase on your premium, and well worth it.

If you have any have any questions concerning insurance, law, or an auto accident, please contact me at (727) 386-9677.

Clearwater Personal Injury Attorney Mark Perenich