Personal Injury FAQ’s

Can I pursue a personal injury case/can I sue after an accident caused by the negligence of somebody else? What is a personal injury case?

Yes, you can pursue a personal injury case if you’ve been injured or harmed due to the negligence of somebody else. That negligence can come in many forms (e.g., another driver can rear-end you on the road, a doctor can commit medical malpractice and injure you, etc.).

What is negligence?

Negligence is defined as the failure to use the due care that a reasonable person would use. If a typical reasonable person would not behave in a certain way or taken certain actions, then anybody who behaves in that way or takes those actions will be considered negligent.

Negligence is different than a criminal act in that negligence is not intentional. A criminal act, on the other hand, is generally intentional. People aren’t typically punished criminally for mistakes or accidents. Negligence is accidental/mistaken behavior.

There is one justice system designed to deal with intentional bad behavior (the criminal justice system) and another which deals with negligence (the civil justice system).

If the defendant in my case makes changes to/alters the dangerous area/place/condition/thing that caused my accident, can I use it/this against the defendant in court?

No, if the defendant makes changes to the dangerous condition that caused your accident, you can’t use this against the defendant in court. Florida Statute 90.407 says as much. The reason for this law is the public policy that society wants defendants to make changes for safety reasons. If these changes could be used against defendants in court, then they would never be made and society wouldn’t be safe as a result. For example, if you trip on a dangerous step in a store and the defendant is nervous to fix the step because you might be able to use the change in court, the defendant might not make the change and another person could be hurt. So, the law says that, if the defendant makes the change, you won’t be able to use the change in court.

If the defendant in my case offers to pay for my medical, doctor or hospital bills/expenses, can I use this as an admission of guilt/fault in court to argue that the defendant admitted to being responsible/at fault?

No, if the defendant in your case offers to pay for your medical bills or expenses, you cannot use this to argue that the defendant admitted to be being at fault for the accident. This rule comes from Florida Statute 90.409, which can be found here:

If the defendant in my case has a criminal background/has been arrested/is a convicted felon/has felony convictions, can I use this against him or her in my case?

Possibly. The rule is that you may use any conviction of a felony or a misdemeanor involving truth or dishonestly. First, the arrest must have resulted in a conviction. In other words, the charge can’t have been dropped or resulted in a “withhold adjudication.” It must be a conviction.

Second, the conviction must have been of a felony or a misdemeanor involving truth or dishonesty (for example, perjury, fraud, or theft).

Third, the conviction must not have been too “remote in time.” In Federal Court, this means that the conviction couldn’t have been over ten years ago. In State Court, there is no exact time limit, so it will up to the Judge to determine if the conviction was too long ago to be used.

If I’ve been arrested/convicted of a crime/convicted of a felony/I have a criminal history, can the defense/other side use this against me in my case?

The same rules apply to you as they do the defendant (so see the answer to the question above). The defense will be able to use any conviction of a felony or misdemeanor involving truth or dishonesty that is not too remote in time.

What is Impeachment?

Impeachment is the process wherein one party to a case demonstrates or shows that the other party has given inconsistent testimony (i.e., told different stories, etc.). For example, if you or the defendant say one thing in deposition but another in trial), then the opposing party can read the deposition in court and point out the inconsistency/“flip-flopping.”

What is Hearsay?

Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. That is, hearsay is a statement that was made out of court by a party to the case or a witness. One party then attempts to use or mention the statement in court to prove whatever was asserted in the hearsay statement.

For example, if a witness to a car accident said on the scene that the defendant had a red light at the time of the accident and you try to use that statement in court, the statement will be hearsay because it is an out-of-court statement you are trying to use to prove that the light was red.

Hearsay usually cannot be used in court. However, there are certain exceptions to this. You should consult with your attorney to determine if the statement you would like to use falls into the category of an exception.

What is gross negligence/willful and wanton recklessness? What is the difference between gross negligence and simple negligence?

Gross negligence is behavior that is so negligent as to be reckless and/or intentional. For example, getting behind a wheel while drunk could be considered gross negligence.

Gross negligence is required for certain types of claims. For example, if the defendant in your case was grossly negligent, then you may be able to make a claim for punitive damages.

What are punitive damages? Can I get punitive damages from/in my personal injury case?

Punitive damages are damages that are designed to punish the defendant in your case, rather than compensating you for your injuries. Compensatory damages, on the other hand, are designed to compensate you for your injuries. Although punitive damages aren’t designed to compensate you, you may be able to receive the punitive damages that are awarded in your case.

In order for you to be able to receive punitive damages in your case, you attorney will have to file a motion for entitlement to punitive damages. In order to be successful in your motion, the defendant will have had to have committed an intentional act or to have been grossly negligent.

Examples of defendant behavior/actions that may entitle you to punitive damages include drinking and driving, texting and driving, and the sale of cigarette/tobacco products.

The granting of punitive damages is governed by Florida Rule of Civil Procedure 1.481, which can be found here:

Can I sue/make a claim/file a lawsuit/bring a case against my employer in the State of Florida?

The answer is usually no. In the State of Florida, if you are injured while at work/on the job, you can typically only file a worker’s compensation claim. However, there are exceptions to this. For example, if your employer didn’t carry any worker’s compensation insurance, then you may be able to file a lawsuit against your own employer. That is, your employer only has “worker’s compensation immunity” if it carried worker’s compensation insurance at the time of your accident. If it didn’t, then it won’t have worker’s compensation immunity, and you will be able to sue your own employer.

Additionally, if you can prove that your employer was grossly negligent (described/explained above), then you may be able to sue your own employer.

Finally, if there was a third party that was negligent and contributed to your injury, then you may be able to make a claim/file a lawsuit against the third party. For example, if a third party business entity/company (i.e., not your employer) came to your jobsite and did something to cause you injury and/or harm, then you may be able to bring a case/make a claim against the third party business entity/company. You can attempt to figure out the name of the third party business/company at the following site: http://www.sunbiz.org.

Can I pursue a personal injury case/sue/file a lawsuit/make a claim even if I signed a waiver of liability form?

The answer to this depends. Generally, you can’t pursue a personal injury case if you signed a waiver of liability form promising that you wouldn’t sue or pursue a personal injury case. However, there may be exceptions to this. For example, if the defendant acted intentionally injuring you or if the defendant was grossly negligent (discussed above), then you may still be able to pursue a personal injury case in spite of the waiver form.

What is sovereign immunity?

Sovereign immunity refers to the immunity of a governmental entity from being sued. Although it used to be that governmental entities could not be sued at all, today they can be sued but enjoy the benefits of certain restrictions and limitations on plaintiffs’ rights to sue. For example, in the State of Florida, you must give a governmental entity six months-notice before suing/filing a lawsuit against the governmental entity. The restrictions and limitations mentioned above can be found in Florida Statute 768.28

Additionally, there are caps on the monetary amount that you can recover from a governmental entity. Typically, that number is $200,000. That is, when suing a governmental entity in a personal injury case, typically the most you can recover is $200,000.

The only exception to this would be in the form of a “claims bill.” A claims bill is a type of legislation filed in the State Legislature in Tallahassee. If the legislation is passed, then the plaintiff will be able to recover more than $200,000 from the governmental entity.

What are damages?

Damages refer to the negative consequences of somebody else’s negligence. For example, either physical or mental/psychological damages could be considered damages.

If you don’t have any damages, you won’t be able to pursue a personal injury case. In other words, you can’t sue somebody just because they were negligent. You can only sue if there have been negative consequences of that negligence. For example, if another driver caused an accident but you weren’t injured and your vehicle wasn’t damaged, then you can’t bring a case against the other driver. You will only be able to bring a case if you have been injured, your vehicle has been damaged or there has been some other negative consequence.

Can I bring or pursue a claim/lawsuit/case if my loved one or family member has passed away/died in an accident due to the negligence or fault of somebody else? What is a wrongful death case? What is a Personal Representative of the Estate (PR)? Who receives the money/proceeds from a wrongful death case?

Yes, if your loved one has died or passed away in an accident due to the negligent or fault of somebody else, you can pursue a wrongful death case on behalf of your loved one? If you do this, an Estate will need to be set up on the decedent’s behalf. Additionally, somebody (usually a relative or loved one) will need to be appointed as the “Personal Representative of the Estate.” When the case settles, it is the deceased person’s survivors who will be the beneficiaries of the Estate and receive the proceeds from the case.

Can I receive compensation/get compensated for my mental/psychological injuries?

Yes, in the State of Florida, you are entitled to compensation for your mental/psychological injuries/harm. In fact, this type of claim is referred to by the law as a claim for “mental anguish.”

If you have sustained mental/psychological injuries/harm, it will be important for you to be seen by a psychologist/psychiatrist/therapist. That doctor will be able to properly substantiate your claim for mental/psychological injuries/harm.

What can I be compensated for/what type of compensation can I receive from my personal injury case/after an accident?

After an accident, you can receive compensation for three things from your personal injury case: your medical bills, your lost wages/time missed from work, and your pain and suffering.

First off, you can receive compensation for your medical bills. This includes past medical bills and future medical bills. Your past medical bills are easy to calculate. This is because they have already been incurred and are therefore certain. Your future medical bills are harder to calculate.

How can I determine/estimate how much my future medical bills/care will be/cost?

Your future medical bills are speculative. There is no way to determine exactly how much they will be. However, an expert witness called a life-care planner can evaluate you and your medical condition and attempt to estimate how much your future medical bills will be.

Can I get compensated/receive compensation for my time missed from work/lost wages?

Yes, if you’ve missed time at work due to an accident caused by the negligence of somebody else, then you may be able to receive compensation for your lost wages. You may be able to receive compensation for both past and future lost wages (if you are expected to miss time from work in the future).

Your lost wages in the past are easy to calculate. It is important for you to try to keep track of your time missed from work and the amount of money you’ve lost as best as possible. Just keep a running log and keep track of how much time you’ve missed from work and how much money you’ve lost as a result.

Your future lost wages are harder to calculate. After all, they are speculative. However, an expert called a vocational engineer may be able to evaluate you, evaluate your job/employment, and attempt to predict how much you will be able work in the future – if at all.

Additionally, an expert called an economist may be able to attempt to quantify those damages and give an exact number for how much money you will lose in the future as a result of your not being able to work (or not being able to work to the same extent).

What is pain and suffering?

Pain & suffering is a term used to describe the general negative effects that an accident, and your consequent injuries, have had on your life and will continue to have. Pain and suffering includes physical pain and mental/psychological injuries as well (referred to as “mental anguish” – described above).

Who will/can compensate me for my injuries after an accident caused by the negligence of somebody else? Where can I get compensation from in my personal injury case?

If you’ve been injured by the negligence of somebody else, then that other person should compensate you for your injuries. However, in many cases that person will carry insurance that will cover him or her and provide compensation to you. For example, in the case of a car accident, the person who caused your car accident may carry automobile accident insurance that can compensate you for your injuries (see “Car Accident Frequently Asked Questions page”).

On the other hand, if your injuries were caused by the negligence of another person and that negligence was not related to a car accident (for example, if you were injured in that other person’s house or in a pubic place), then the other person’s homeowner’s insurance policy may be able to provide compensation for your injuries.

If it was a business entity that caused your injury, then that business will probably carry a commercial liability policy which can provide you with compensation for your injuries.

Finally, if there is no insurance available, you may be stuck pursuing compensation from the individual or entity whose negligence caused your injuries.

How badly do I have to be injured/hurt in order to pursue a personal injury case/sue/file a lawsuit/make a claim?

There is no minimum required injury in order to pursue a personal injury case. You can pursue a case if you’ve been injured or harmed at all. In order to determine if you should pursue a case, it’s best to speak directly with an attorney such as Mr. Quackenbush.

What is a demand letter?

A demand letter is a letter (typically written by an attorney) which requests or “demands” that an insurance company, individual or business entity provide compensation to you for your injuries. Demand letters are not always sent – sometimes lawsuits are filed immediately (especially in the case of a catastrophic injury).

When you send a demand letter to an insurance company for an individual or entity which caused your injuries, the insurance company may respond with a counter-offer. You will then be forced to negotiate or file a lawsuit?

Typically, a demand letter will be “time-dated” (meaning that it will give a certain amount of time for a response – many times 30 days). If the demand letter goes to an insurance company and the insurance company doesn’t respond within the time limits given in the demand letter, then the insurance company can later be found to be in “bad faith.”

What does it mean for an insurance company to be/act in bad faith?

An insurance company has a responsibility to protect its insureds and pay out legitimate claims within a reasonable amount of time. If it doesn’t and instead unnecessarily delays or denies a claim, then it may be later found to be in “bad faith.” If that is the case, then the insurance company can be on the hook for more than the “policy limits.”

What is the most I can get from my personal injury case/claim/lawsuit/suit? What is an insurance company’s policy limits?

An insurance company’s policy limits is the amount of insurance purchased by the “insured” – the person or entity whose negligence caused your injuries. For example, when you purchase an insurance policy, you have the option of purchasing different levels of insurance. You can, for instance, purchase insurance policies for $10,000, $100,000, $1,000,000, etc. Typically, the more insurance you buy, the more will be the premiums you have to pay each month. The insurance policy limits indicate the level of insurance you purchased (i.e., $10,000, $100,000, $1,000,000).

These policy limits may vanish and the insurance company may wind up responsible for paying more than their policy limits if the insurance company is found to be in bad faith. For example, if you are injured by a person or entity who carried a million dollar insurance policy, you are catastrophically injured, and the insurance company refuses to pay you the million dollars within a reasonable amount of time – then the insurance company may later be deemed to have acted in bad faith and could be on the hook for more than the one-million $.

What is an umbrella insurance policy?

An “umbrella” policy is one which covers the insured (the person who purchased the umbrella policy) for negligence in car accidents and general negligence (i.e., the same type of negligence that would ordinarily be covered by a homeowner’s policy). It is said that the umbrella insurance policy sits like an umbrella over the insured’s car insurance policy and homeowner’s insurance policy and supplements them both.

Does a homeowner’s insurance policy cover me for negligence? Can I get/receive compensation from a homeowner’s insurance policy?

Yes, a homeowner’s insurance policy can cover you for negligence. For example, if another person is negligent and injures you, you may be able to receive compensation from the homeowner’s policy of the negligent individual. This will apply, for instance, if another person accidentally knocks you down in a public place and injures you.

What is an intentional tort?

An intentional tort is an intentional act committed by a “tortfeasor” (the “bad actor”) that may or may not rise to the level of a crime. For example, assault and battery are examples of intentional torts that would also be considered crimes. In cases such as assault and battery, the bad act may be prosecuted both criminally and civilly. In other words, if you’ve been the victim of an assault & battery, the perpetrator may be arrested and you may also be able to sue him/her to recover compensation in your case. The two cases will be handled in two separate justice systems – the arrest in the criminal justice system and your lawsuit/claim/litigation/case in the civil justice system.

What is a lawsuit/litigation?

A lawsuit is case in which you actually sue the individual or entity which negligently caused your injuries. A document called a complaint begins or initiates the lawsuit. Litigation is the process that ensues after you file a lawsuit/complaint?

You can monitor your lawsuit/litigation by looking on the clerk of courts website in the county where your lawsuit was filed. For example, in Broward County, Florida, the clerk of courts website can be found here:

In Palm Beach County, the clerk of courts website is:

In Miami-Dad County, the clerk of court’s website is:

Where can my lawsuit be filed/where can I sue?

In the State of Florida, you can bring your lawsuit/sue 1) in the County where your accident giving rise to the lawsuit occurred or 2) in the County where the defendant resides. In the case of a corporate defendant (for example, if you’ve been hurt or harmed by the negligence of a company or business), then you may bring your case in any County where the corporate defendant is located or does business.

What is service of process? What does it mean for the defendant in my case to be served?

Service of process is the procedure wherein the defendant in your case is “served” with the lawsuit. This will be done by a process server. Service of process starts the clock ticking and gets the ball rolling on your lawsuit. After service of process, the defendant in your case will have 20 days to respond to the lawsuit with a document called an “Answer.”

In the State of Florida, service of process is governed by Florida Rule of Civil Procedure 1.070, which can be found here:

What is a Default Judgment? Can I collect/how do I collect on a default judgment?

A default judgment is a judgment that is granted when the defendant in your case doesn’t respond to the lawsuit. After your Complaint/Lawsuit has been served on the defendant in your case, the defendant has 20 days to respond to it. If he or she doesn’t, then you can ask your Judge to grant a “default” and essentially declare that the defendant was at fault for your accident and injuries.

After that, you must have a trial just on “damages” alone – which means that the only question for the jury will be how much money/compensation to award you for your injuries (not who was at fault for the accident).

Although a default oftentimes makes it easier to get a big verdict from a jury, it can make it harder to collect on that verdict. After all, many insurance policies include exclusions for default judgments (meaning they refuse to pay out on default judgments), so, if you get one, you may be stuck trying to collect from the defendant’s personal assets – rather than from the insurance company itself.

The use of default judgments is governed by Florida Rule of Civil Procedure 1.500, which can be found here:

What is a class action lawsuit? Is my case/claim/lawsuit part of a class action?

A “class action” lawsuit is one in which multiple plaintiffs (i.e., injured, harmed or wronged people) pursue their cases together as part of a “class.” Class membership must be approved or certified by a judge/court. Otherwise, the members of the class will all have to pursue their cases individually.

The use of class actions in the State of Florida is governed by Florida Rule of Civil Procedure 1.220, which can be found here:

In order to determine if your case is or should be part of a class action, it is best to consult with an attorney such as Mr. Quackenbush.

Do I need an attorney in order to pursue my case/make a personal injury claim/file a lawsuit?

No, you can always make your claim/file your lawsuit “pro se” (meaning by yourself or without an attorney). However, it is recommended that you use an attorney as only an attorney knows the rules of civil procedure and evidence required to guide your case to a successful conclusion. A good attorney will dramatically increase the amount that an insurance company will offer you as well.

How should I/what is the best way to pick/select/decide on an attorney for my personal injury case?

You should always meet with the attorney you are considering face to face. An attorney-client relationship is an important one, and you should make sure you feel comfortable with the attorney you’re hiring.

Additionally, you should research the attorney you are considering hiring and make sure that the attorney has a good track record in court/trial and is therefore able to get good results on his or her cases.

You can find/research the attorney you are considering at the Florida Bar website:

What is a board certified attorney? What does it mean for a lawyer to be board certified?

A board certified attorney is one who has passed the rigorous tests required for board certification. These include trying a certain amount of cases (i.e., jury trials), passing a peer review, taking a certain amount of board certification CLE (continuing legal education) classes, and passing a written test – among other requirements. Details on the Florida Bar’s Board Certification program can be found at:

You can look up/research the attorney you are considering hiring at the Florida Bar website:

Are my conversations with my attorney confidential? Can I tell my attorney anything/everything?

Yes, your conversations with your attorney are confidential. This is referred to as “attorney client privilege.” What you tell your lawyer and what your lawyer tells you cannot be discovered or inquired about by the other side of your case. One exception to the attorney client privilege is in the case wherein you tell your attorney that you are going to commit a crime. In that case, your attorney is obligated to divulge that information to the authorities.

In a lawsuit, who is the plaintiff?

The plaintiff in a lawsuit is the person who is injured/harmed and is bringing the lawsuit. If you’re the person who has been hurt due to the negligence of another person or entity, then you are the plaintiff.

In a lawsuit, who is the defendant?

In a lawsuit, the defendant is the person who negligently caused your injuries and is therefore being sued. If the defendant is a corporate defendant, you can use the following site to help determine the proper corporate name of the defendant company: http://www.sunbiz.org.

When my lawsuit is filed, do I have to say/state how much I am suing for?

No, Florida is different from other states in this respect. In many other states, you have to state how much you are suing for in the Complaint (the document that starts the lawsuit). In Florida, in order to wind up in Circuit Court, you need only state that you are seeking more than $15,000. Under $15,000, and you will wind up in County Court. In fact, you don’t have to say how much money you are looking for until closing arguments in the trial of your case.

Will my case end up/wind up in State Court or Federal Court?

This depends on the type of case. Certain cases automatically go to Federal Court because they are based on federal law. In other cases, where the case ends up will depend on the residence of the various parties and the amount of money being sought in the suit. If there is “complete diversity” in the case (i.e., all of the parties to the case live in different states, and no two parties live in the same state) and the plaintiff is seeking more than $75,000, then the case can be moved to federal court.

On the other hand, if any two parties live in the same state or the plaintiff is seeking less than $75,000 in the lawsuit, then the case will stay in State Court. Although it is true that you don’t have to state how much you’re looking for from your lawsuit until closing arguments in your case, the defense may send you a request asking if you are looking for more than or less than $75,000. If you state that you are looking for more than $75,000 and all of the parties in the case live in separate states, then the defendant may attempt to move the case to Federal Court and may be successful in doing so.

You can access the State Court website for the 17th Judicial Circuit in Broward County, Florida at:

You can access the State Court for the 11th Judicial Circuit in Miami-Dade County at:

You can access the State Court for the 15th Judicial Circuit in Palm Beach County at:

What is a statute of limitations? How long do I have to file my personal injury lawsuit?

A “statute of limitation” is a time limit given by the law which dictates how long you have to file a lawsuit in your case. If you wait longer than the time given by the statute of limitations, you will be forever barred from filing a lawsuit in your case.

The statute of limitations varies by the type of case. For example, in a car accident case, you will typically have four years to file a lawsuit, although this will be different if you are the loved one of a person who passed away in the accident filing the lawsuit on behalf of the deceased person (in which case the statute of limitations will be only two years for a wrongful death case).

You should contact an attorney such as Mr. Quackenbush to determine the exact statute of limitations for your case.

What is a statute of repose? What is the difference between a statute of limitations and a statute of repose? What is the statute of limitations/statute of repose for a medical malpractice/doctor or hospital case in the State of Florida?

A statute of repose is different from a statute of limitations in that it sets a hard deadline without exceptions for when a lawsuit must be filed. For example, in a medical malpractice/doctor or hospital negligence case in Florida, you have two years to file a lawsuit from the date when you either a) knew of the medical malpractice or b) should have known of the medical malpractice. So, in other words, the statute of limitations doesn’t start running from the time the malpractice was committed; rather, it runs from the time you knew or should have known that the malpractice was committed.

The statute of repose for a medical malpractice case in Florida, on the other hand, is four years from the time the malpractice was committed (it doesn’t matter when you knew or should have known that the malpractice was committed). The only exception to the statute of repose comes in the case when fraud, concealment or misrepresentation was committed by the medical provider.

What is the Statute of Limitations for a Wrongful Death case in the State of Florida?

The statute of limitations for a wrongful death case in the State of Florida is two years.

What is the Statute of Limitations for a Car Accident case in the State of Florida?

The Statute of Limitations for a car accident case in the State of Florida is 4 years.

What is the Statute of Limitations for a Products Liability case in the State of Florida?

The statute of limitations for a products liability case in the State of Florida is 4 years.

When can I get/obtain a trial date in my case?

Typically, you can get a trial date 20 days after the Defendant answers your Complaint/lawsuit. That is, after your Complaint (the document that starts the lawsuit) is filed and served on the Defendant, the Defendant has 20 days to file an “Answer” (the document that responds to your Complaint/lawsuit). Another 20 days after the Answer is filed, you can request a trial date.

The rule above can be found at: http://phonl.com/fl_law/rules/frcp/frcp1440.htm.

What happens during the litigation process? What is discovery?

The litigation process is composed of various stages. The first is the “discovery” stage. Discovery refers to the process wherein each side of a lawsuit “discovers” or finds out the position of the other side or what evidence the other side has.

What are interrogatories, requests to produce/for production, and requests for admissions?

Interrogatories, requests to produce/for production, and requests for admissions are tools used during the discovery process to figure out the position of the other side in your litigation and see what evidence the other side has. Interrogatories are written questions that are asked of the other side regarding the incident or injuries upon which the litigation is based. Requests to produce are written requests for documents and other items relevant to the litigation. These can include requests for medical records, photographs and videotapes, inspections of vehicles, etc. Finally, requests for admissions are demands made by the defense/the other side in your case for you to admit or deny that certain things are true. For example, the defense/the other side may request that you admit or deny that you were partially at fault for the accident yourself.

The use of interrogatories is governed by Florida Rule of Civil Procedure 1.340, which can be found here:

The use of requests to produce is governed by Florida Rule of Civil Procedure 1.350, which can be found here:

The use of requests for admissions is governed by Florida Rule of Civil Procedure 1.370, which can be found here:

What if the defendant/the other side gets rid of/destroys evidence in my case?

If the defendant/the other side in your case gets rid of or destroys evidence in your case, you may be able to file a motion called a “spoliation motion.” This depends on whether the defendant knew at the time the evidence was gotten rid of/destroyed that litigation/a lawsuit might be forthcoming. If the defendant had a reason to believe that litigation/a lawsuit was coming and still got rid of the evidence, then you might be able to file the spoliation motion.

A spoliation motion (or a motion for an adverse inference) requests that the judge order the jury in your case to presume that, if the defendant hadn’t destroyed/gotten rid of the evidence, it would have been bad for the defendant/it would have hurt his or her case.

You will be in a better position to make this argument and will have a better chance of winning the spoliation motion if you had previously sent the defendant a spoliation letter advising that a claim was forthcoming and demanding that the evidence be preserved. As such, a prudent attorney will always send a spoliation letter any time he or she is aware of valuable evidence that might be lost otherwise (e.g. videotapes, documents, vehicles, black box/GPS/EDR data from a vehicle, etc.).

Am I entitled to/can I get the videotaped footage of my accident?

If such videotape exists, then the answer is yes. For example, if your accident occurred in a store, then there may be surveillance video of the accident. If there is, then you are entitled to it. However, you will most likely need to file a lawsuit and get subpoena power in order to obtain the video footage.

Once you are in litigation, the store may be able to prevent you from getting the video until after your deposition. Whether you can get the video before or after your deposition will most likely be up to the Judge in your case. Some judges allow you to get the videotape before your deposition, and some only allow you to get it after your deposition.

Contact Us for a Free Consultation
Contact Us