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Why You Need to Contact an Attorney After an Accident

September 15, 2009

After an accident, contacting an attorney isn’t just something you should do. There are several reasons why it’s something you need to do.

First, in our society, given the supposedly negative image of lawyers and lawsuits, most people are hesitant to contact an attorney after an injury. The insurance industry and related business groups have created a negative stereotype of anyone who might want to insist upon learning about what legal rights they may or may not have. Nevertheless, simply talking to an attorney about your legal rights, and protecting and preserving evidence in the event there is a claim you want to pursue, is a critical decision and one that most businesses and insurance companies engage in every time there is an accident. There are accidents that do not lead to lawsuits; there are accidents that could lead to legal claims but a decision is made not to pursue any claims (injury not serious enough, too expensive or too risky, no way to collect any award, etc.); and there are accidents that do lead to lawsuits (some of which are won, some of which are lost, and many of which are settled).

Second, what is critical in virtually all of the accident situations, but especially so in serious injury or death cases, is the vital need for an investigation into the cause of the accident and the preservation and protection of evidence (from the scene, a reconstruction, appliances or mechanical devices, testing, photographing, videotaping, etc). The experienced and knowledgeable lawyer and law firm will or should immediately be able to provide legal notices to the involved parties requesting the preservation of any and all evidence (including documents and electronically-stored evidence) and access to the evidence with investigators and expert witnesses knowledgeable about the particular type of accident.

Third, every second that is lost without someone investigating and protecting the accident scene and evidence, and talking to and obtaining truthful information from available witnesses, on your behalf, is a second the other side is using to its advantage. From our experience, it is the rule, not the exception, that whenever there is an accident, there are insurance adjusters, investigators, and lawyers and experts already involved from the first notice of an accident working the scene or talking to witnesses. Their interest is not to find all of the information and evidence, to find the “truth,” and then present it to you or a lawyer you later may hire.

Fourth, we have had many, many cases in which critical evidence or an accident scene has been lost, altered, or destroyed, or in which the scene and evidence has been significantly changed from its accident condition, making a case that much harder to investigate and eventually prove. We have had success despite these problems but it is not unusual for there to have been “spoliation” of evidence by people or companies in an effort to avoid liability. “Spoliation” is a legal term that may provide some relief in a legal case for someone who has not protected evidence or had or allowed it to be changed or altered. However, some states are more aggressive in how they view spoliation of evidence. In Michigan, for example, there is no legal claim against someone for the spoliation of evidence. You may be able to get some relief from a court, but many of the cases have been hardest on the Plaintiffs themselves – dismissing claims for the Plaintiff’s failure to preserve the evidence whereas a Defendant who has allowed the spoliation of evidence may get a favorable jury instruction, if that. This presents another reason why a person injured in an accident should contact an attorney – if evidence under his or her control is altered or destroyed (intentionally or by mistake), you may have your legitimate case dismissed because of this alteration in certain circumstances.

Fifth, it does not matter what type of case it may be (product liability, auto negligence, premises liability, general negligence, gas explosion, scald burn, nursing home neglect, carbon monoxide poisoning, and so on); it does not matter who may have caused the accident, where the accident is or the evidence located – an investigation and preservation of the evidence needs to be done to protect your legal rights should there be a legal case worth pursuing. Having an experienced lawyer and law firm investigate a case typically will not cost you any money unless a case is going to be pursued after the investigation, in which case a typical contingency contract is agreed to and executed. Not having an investigation done, while the other side is doing so, may harm or limit the success of a legitimate legal claim for serious injuries. We have had cases involving propane and gas explosions and fires in which the other side had access to critical evidence, the scene and witnesses weeks and months before we were even contacted to conduct an investigation. We have had cases involving carbon monoxide poisoning in which the accident scene was altered by the time we got involved. We have had car and trucking accidents in which an accident reconstruction was not done by the police at the time and that is more difficult to do months after the accident. On the other hand, there are cases in which we have been contacted quickly by a family member. As a result, we have been able to have an investigation and experts on the scene sometimes the same or next day. There are many cases involving catastrophic burn injuries in which we have been able to not only protect and preserve the scene but essentially gather the critical and necessary evidence (photographs, witness statements) that have led to major settlements for our clients without a lawsuit even being filed. The failure to contact an attorney is not inherently wrong or a mistake – we have found that most people simply have no idea of how the legal process works and why it is critical for an experienced attorney and law firm to conduct an investigation and protect any legal claim that may exist. Many clients believe that the police or fire investigators are going to do a complete and thorough job, but that is not necessarily true. Many clients have no idea that the other side already has its own team assigned and is working the case. And many clients willingly acknowledge that they “don’t sue,” “are not litigious,” or “are not like those people that do bring legal claims.” However, when someone is seriously injured or killed due to the provable negligence of someone else, our clients then acknowledge that they wish they would have contacted us sooner so that a complete and thorough investigation could have been conducted as soon as possible. And they recognize that our system of justice is built upon accountability – of people being held accountable for their actions and inactions that cause serious injuries or death. And they recognize, sheepishly, that the media and advertisements have created a negative image of anyone whom might bring a lawsuit, such that they distance themselves from “the McDonald’s coffee case.”

Finally, not every accident creates a legal claim. Not every accident creates a legal claim worth pursuing. Not every accident creates a legal claim that a lawyer is willing to pursue. Many accidents that cause injuries provide some legal rights (workers’ compensation benefits, for example), while there are some accidents that cause serious injuries or death that create legal claims worth pursuing (even cases in which you might get legal benefits such as workers’ compensation benefits as well). Investigating and protecting the accident scene and evidence and obtaining first-rate experts in the vast majority of cases is critical – the sooner the better. The other side already has investigators and adjusters and lawyers and experts involved in serious accident cases. So should you.

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