There’s nothing unusual in victims wanting to know what evidence is available to them before they go ahead and file a personal injury lawsuit. Evidence gathered during the investigation, like eyewitness statements and CCTV footage, can be used to show exactly what happened. A Virginia Beach personal injury lawyer can help you work out what evidence might be available and what legal options exist for getting your hands on it.
Most people think they can just demand records or make witnesses give statements before a case is filed. In practice, the rules are usually more complicated. While some evidence can be gathered informally, other evidence may only become available when litigation begins.
What Types Of Evidence Might Be Available Before A Lawsuit Is Filed?
What kind of evidence is available depends upon the circumstances of the accident. Sometimes there are police reports, incident reports, photos, videos, medical records, or vehicle damage. Government agencies might even have records of maintenance issues or previous complaints.
Witnesses might also be available to give information about the accident by speaking with an injured person or their attorney and providing a statement without any formal legal process.
The real challenge here is that not everyone is required to cooperate before a lawsuit is filed. A witness may decline to talk. A business may refuse to release surveillance footage. No insurance company is going to hand over the entire claim file. So, gathering evidence before you go to court is often a mix of investigation and legal strategy.
Can You Request Evidence Informally Before Filing Suit?
In many cases, sure. Evidence can, on occasion, be retrieved via casual requests. For instance, an attorney can contact witnesses and ask whether they would be willing to provide information. Businesses may be asked to retain surveillance footage or other records.
Insurance companies might share certain information in the course of handling a claim. But generally, they disclose what they choose to disclose before litigation. They are not usually expected to deliver all investigative materials simply because a claim has been made.
Informal requests sometimes yield useful evidence, without the cost and delay of litigation. They can also help determine whether additional legal action may be necessary.
What Is A Pre-Litigation Subpoena?
A subpoena is a legal order compelling a person or organization to provide testimony or other evidence. Many people are surprised to learn that obtaining a subpoena before filing a lawsuit is often more difficult than obtaining one after litigation has begun. In most situations, parties gain broader discovery rights once a lawsuit is filed.
Virginia law does have limited procedures that may permit the preservation or obtaining of certain evidence prior to the filing of a lawsuit in certain circumstances. But such procedures generally aren’t available just because someone wants to see what evidence there is before deciding whether or not to sue.
Courts typically require a proper legal basis before forcing third parties to provide documents or testimony before litigation. The particular requirements depend on the situation and the relevant rules.
Why Is Preserving Evidence So Important?
After an accident, one of the biggest concerns is that evidence will disappear. Surveillance footage may be automatically deleted. Vehicles can be fixed or destroyed, as can physical evidence. Witnesses’ memories may become less reliable over time.
Because of this risk, attorneys like to send preservation letters as soon as possible after an accident. These letters inform an individual or business that evidence that might be relevant to a potential claim needs to be preserved.
A preservation letter does not automatically conserve evidence, so much as it makes the recipient of the letter aware of its importance. This can become significant if the evidence later “vanishes” into thin air.
Can Witness Statements Be Obtained Before Filing A Lawsuit?
Sometimes they can. Many witnesses are willing to discuss what they observed. An attorney or investigator may also contact witnesses and ask them about the accident. If the witness consents, a written or recorded statement may be taken.
But normally, witnesses are not obliged to give a statement before litigation unless there is a special procedure in law. Some witnesses may decline to participate or may prefer not to become involved.
Even when formal statements are unavailable, early witness interviews can be extremely valuable. A Virginia Beach personal injury lawyer may work with investigators to locate witnesses and gather information before filing a lawsuit.
Are Insurance Company Investigation Files Available Before Litigation?
Not in most situations, no. After an accident, insurers conduct their own investigations by interviewing witnesses, examining property damage, and assessing liability.
Insurance companies aren’t usually required to allow unrestricted access to their investigative files prior to litigation, although some information might be exchanged during settlement negotiations. Some materials might also be protected by legal doctrines that limit disclosure.
For this reason, victims should never assume they will automatically receive all the evidence an insurer collects during the investigation.
When Does Formal Discovery Become Available?
Formal discovery generally becomes available after a lawsuit is filed. Discovery is a legal process by which parties can obtain information from each other and third parties. Discovery can involve written questions, document requests, depositions, subpoenas, and other methods.
This process often provides access to evidence not available at the pre-suit investigation stage, such as other witnesses, internal records, and other information relevant to the case.
That is why, in some cases, it is necessary to bring a lawsuit when important evidence cannot be obtained voluntarily.
How Can An Attorney Help Before A Lawsuit Is Filed?
At Shapiro, Washburn & Sharp, our Virginia Beach personal injury lawyers have been helping personal injury victims preserve critical evidence and build strong cases since 1985. Gathering evidence early can make a world of difference in the outcome of a claim. In one case, we secured a $3.5 million recovery for a client who suffered permanent brain injuries after being struck head-on by an impaired driver.
If you were injured through no fault of your own and have questions about what evidence is available before filing a lawsuit, you can schedule a free case review by calling (833) 997-1774 or filling out our online contact form. Our offices are located in Virginia Beach, Norfolk, Hampton, and Portsmouth.