Whether you have been in a car accident or slip and fall in Florida, it is important to understand some of the basic issues related to documentary evidence, including how documents become admissible evidence. This knowledge is so important because admissible evidence is at the foundation of proving any personal injury claim.
What Evidence Can You Use To Prove Negligence
In Florida, an accident victim has the burden of proving both (1) the liability (negligence) of those responsible as well as (2) damages in order to recover compensation for his or her injuries.
Proving liability, or negligence, is accomplished by providing evidence of the tortfeasor’s wrongdoing.
Evidence can be in the form of:
- Witness testimony/ Expert testimony
- Documents (Interrogatories, Requests For Production, Request For Admissions, medical bills, police reports, etc.)
- Physical evidence (damage to a vehicle, a cracked sidewalk, slippery hotel bathtub)
How Do Facts or Information Become Evidence in a Florida Personal Injury Case?
Evidence is defined by specific legal principles, rules, and laws that control how juries and judges analyze information to determine its reliability, truthfulness or admissibility.
For example, opinion evidence from an expert has specific rules and regulations which must be followed, like providing a scientific basis for their testimony, in order for a judge or jury to be able to rely on the expert’s opinion.
Here in Florida, there are the Federal Rules of Evidence for federal matters and the Florida Evidence Code for state claims.
Sometimes, certain issues in a personal injury lawsuit require a judge to hold an evidentiary hearing for the purpose of making a determination on a specific aspect of the case. At an evidentiary hearing, a judge can consider expert and lay witness testimony, and rule on whether or not certain information should be admitted, excluded, or limited for use in the case.
Some of these evidence rulings are so important in the way they can impact the outcome of a lawsuit that they are often the basis for filing an appeal.
Notwithstanding how complex evidentiary issues can be, there are some basic guidelines to know when using documented facts or information to prove negligence or damages in a personal injury lawsuit.
Types of Documentary Evidence
Simply stated, documentary evidence is anything that is in the form of a document. However, the term document can mean many things, including:
Demonstrative evidence
This involves physical objects that can, for example, prove an argument or illustrate damages. They include things like photographs, videos, audios, maps, graphs, charts, security camera footage, x-rays, MRI results, etc.
Digital evidence
Digitized information includes items like emails, instant messages, cell phone logs, hard drive data, online banking transactions, archived tweets and Facebook posts, etc.
Written evidence
Contracts, invoices, medical records, medical bills, auto repair bills, letters, notes, therapy notes, and more can become written evidence. Any form of paperwork with pertinent information can be considered written evidence in your case.
Scientific evidence
This can include the formalized written opinion or report from an expert in a scientific area pertinent to your case, such as an accident reconstruction specialist. It can also be treatises and other scientific material that helps prove liability or damages for you.
Your first step is to gather as much of these things as you can to support (1) the argument that the defendant is responsible for the accident and (2) the damages you have and will incur as a result of your injuries.
Best Evidence Rule
As you gather information for your case, it’s important to know about the “best evidence rule.” This rule essentially says that if you want to have a document considered as evidence, the best thing to have is the original document.
For example, if you want to prove your medical expenses, then it’s best to have the original invoices and bills from the hospital, lab, pharmacy, treating physician, surgeon, anesthesiologist, physical therapist, etc.
If you cannot obtain the original document, then under the “best evidence rule,” you find the next best thing.
For instance, your bank may not release its original files to you. However, it may give you photocopies of your financial records with an affidavit that these are true and correct copies of the original documents.
In proving your claim for settlement, you may not need to meet the best evidence rule. However, it’s important to know that it will apply if any lawsuit is filed. Take the time to gather as many originals as you can, in case you need to meet the “best evidence rule” later.
Spoliation
Another important issue is the requirement to protect and secure the information or documents that you have in your possession, custody, and control. As you gather documents, you need to make sure they are not lost or destroyed.
In the event the information is lost or destroyed before the other side in a lawsuit has the chance to review them, the other side may be able to assert a claim for “document spoliation” against you.
Under “document spoliation,” both sides have a legal duty to protect all the records in their possession, whether or not they help their side or not. This legal duty begins with the accident itself and continues until the matter is finally resolved.
In some cases, this is more of a concern for the defendant in an accident case than a plaintiff.
For instance, after a slip and fall in a grocery store, the defendant may be required to produce cleaning logs or maintenance records, as well as other information that may be helpful to show the defendant was negligent.
If these records have been intentionally erased or destroyed, then the slip and fall defendant (the business or property owner) may have violated its duty to protect against spoliation.
Authenticating a Document
Once you have located your paperwork, you need to know how documents become admissible evidence.
Essentially, an injury victim must be able to show that the document is exactly what the victim is claiming it to be. How this is done depends on the document type.
Self-Authenticating
Public records are things that you get from an official government source.
Police reports are a common type of “self-authenticating” document. As explained by Rule 902 of the Federal Rules of Evidence, some documents stand on their own and are respected as being authentic for purposes of being admitted as evidence.
Other types of self-authenticating documents include:
1. Public Records Sealed and Signed by the Government
If the document has a seal from the county, state, municipality, or any agency or department, then it can be considered as evidence.
2. Certified Public Records
Sometimes, the government does not provide a seal but it will certify your copy of the original as it is kept on file. Certified copies of birth certificates and death certificates are well-known examples of these forms of public records.
3. Official Publications
These are publications issued by a public authority. For instance, official publications from the Department of Transportation regarding the hazards involved with the intersection where your accident happened might be helpful in proving liability in your case.
4. Newspapers and Magazines
Printed material purporting to be a newspaper or magazine in most circumstances cannot be used for evidence purposes. However, pictures within a newspaper or magazine, if they can be authenticated, may be used.
5. Affidavit or Acknowledgement
Affidavits and acknowledgements are commonly used to prove documents, particularly business records. You can obtain these affidavits, or demonstrate that you are ready and able to do so, in order to support many documents in your accident claim.
Here, someone who has knowledge of the original document and how it is created and kept by the organization signs an affidavit to that effect. That affidavit incorporates by reference the document in question for all intents and purposes.
Together, the affidavit and its attached document, can become evidence in the case.
Where Do You Find Documentary Evidence?
It can be a difficult job to track down documentary evidence needed to prove an injury claim.
For instance, digital evidence can be difficult to retrieve. A victim may need to extract data from hard drives, cell phones, even internet-enabled devices like some mapping applications in a car involved in the accident. Also, you may need to recover information from web or cloud based data sources, like Facebook, Instagram, Dropbox or Twitter, all of whom are not eager to share their data.
Here are some common sources of documentary evidence which can be used to support a Florida accident claim:
- Police Department – police report
- EMS or Ambulance Service – records of your transport and treatment
- Hospital Administration – all records of your treatment from admission to discharge
- All Medical Providers – treatment records and prognosis for future medical care (treating physician, surgeon, psychologist, etc.). Their office staff should be helpful in providing this information since they are asked to do this sort of thing all the time.
- Witnesses – any notes made by witnesses to the accident, as well as photos, videos, or audio files made at the accident scene. You can find the names of witnesses in the police report.
- Your Personal Records – diaries you have kept of your recovery and care, including documentation of pain and suffering, emotional trauma, etc. It’s a good thing to keep a written record of what has happened to you.
- Government Agencies – documents pertaining to the accident site, such as past accident records for that location. You may need to do online research to determine exactly what agency governs the geographic whereabouts of your accident.
- Your Personal Investigation – photos, graphs, maps, etc. that you have compiled of the accident site after the injury happened, such as photos of the cracked sidewalk where you fell at the grocery store.
- Your Personal Photographs – photos you have kept of your injuries as they have been treated during the course of your recovery (showing things like bruises fading, your ability to stand or walk, scars, etc.). These photographs can be taken daily or weekly, and can be combined with your diary of the incident.
- Records of Caregivers – if your loved ones and hired home health care have documented your injuries or recovery in any way, these documents can be helpful in proving your damages and severity of your injuries. Often, caregivers observe important nuances about the victim’s injuries and recovery that the victim doesn’t notice and these can be vital to proving up damage claims.
- Employment Records – these can be used to prove your lost wages and lost future earning capacity. In order to get reimbursement for any money you have lost from being out of work from the accident, you will need to document those sums with evidence.
- Your Financial Records – things like out of pocket expenses for wheelchairs or canes, ice bags, and more can be proven as well as other, bigger expenses like therapy costs and prescription medication expenses. Even minor expenses (like an Ace Bandage or an ice pack) can be covered in an accident claim, but only if you have the proper documentation to support it.
What About Information You Give To An Insurance Adjuster?
It is extremely important that you know what to expect when negotiating your personal injury claim with an insurance adjuster.
Adjusters are trained to use any piece of evidence against you.
For this reason, when you are asked to give a statement after your accident, be mindful of what you say. That statement can, and will likely, be used as evidence against you in a lawsuit.
What Should You Do?
Often, accident victims and their families find that dealing with the aftermath of an accident is overwhelming enough without having to deal with proving up an insurance claim. An experienced Florida personal injury lawyer can be invaluable here, not only in helping get a claim resolved but also in getting justice for the accident victim.
A good piece of advice if you have been harmed as a result of someone’s negligence, is to speak with an experienced personal injury lawyer before you file a claim to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the procedures to lawfully recover certain evidence. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
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Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
