What to keep, what you can throw away, and why your lawsuit may depend on you doing it right
I’m changing the advice I’ve been giving for 23 years to my clients on what they can keep and what they can throw away after a car crash.
I used to spend a lot of time on this issue, explaining why it is so important to keep things like receipts and photos of vehicle damage. I’d spend time explaining the implications of throwing other items away.
But the landscape is evolving. I serve as president of the Motor Vehicle Trial Lawyers Association, and so I get to see early trends of how defense lawyers and insurance companies are defending car crash cases across the nation.
What I am seeing is the defense becoming ever more aggressive and ever more emboldened over the last few years. The judges and courts in many states, including Michigan, have enabled these aggressive defense maneuvers by pursuing what many lawyers believe is a clear pro-insurance industry and anti-consumer agenda.
I’m seeing defense motions that would have been laughable just five years ago now being granted by some judges.
One scary example of this that I am starting to see (and which not long ago would have been considered so ridiculous that the defense lawyer might even have faced sanctions for the filing a frivolous motion) is this: in car crash product liability cases, defense lawyers are filing spoliation motions against the car crash victim and the accident victim’s lawyer, alleging “spoliation” for “failure to preserve the striking vehicle.”
Typically, in a crashworthiness case, or an air bag product liability defect case, or a seat-back or seatbelt product liability defect case, or any type of fuel tank penetration case, the vehicle with the defect is, of course, preserved. That’s the way it’s been for literally decades. The striking vehicle gets totaled out and destroyed or perhaps is fixed and then placed goes back into service.
But now, watch out. The wrong judge in the wrong courtroom, and the sanctions assessed in any type of car crash or product liability lawsuit could be severe.
In the example I just used above, I’m telling other plaintiff personal injury lawyers the safest course is to preserve everything. If the other party refuses to cooperate and refuses to preserve evidence, at least get something filed as soon as possible with the court and put the potential defendants on notice.
That’s why I’m now changing the advice I give to my own car crash clients when they are across my desk after 23 years of practicing auto accident injury law. What I used to think was preposterous and absurd is now actually being entertained by some judges as defense lawyers, emboldened by a decade of largely pro-defense rulings from our appellate courts, are taking a “why not file a motion on this” type of attitude in litigation.
So, if you’re a car crash victim and you’re injured and hurting and thinking about filing a possible tort lawsuit, in this bizarre new world you must repeat these words to yourself: Save everything.
I know the last thing you want when you are already dealing with a stressful and overwhelming experience like a car crash is the pressure to keep every document in order.
You’re probably more focused on about a hundred other things, such as how long it will take for you to recover from your injuries and how your totaled car or truck will get fixed or replaced. If you’re seriously hurt, your medical bills are piling up at breakneck speed.
But now if you are thinking of hiring an injury lawyer and possibly filing a lawsuit against your insurance company, or the other driver’s insurance company, you must be vigilant in holding onto everything that’s related to your car accident.
Your lawyer can always go through the documentation later, but it all needs to be there.
What to keep if you are thinking of filing a lawsuit after a car crash?
These are the top three things our Michigan Auto Law attorneys recommend you save after a car crash:
- Receipts: You may need these for any tort claim for injuries and pain and suffering. In addition, the Michigan No Fault Act also requires your car insurance company to pay for all your car accident-related medical expenses. This includes everything from over-the-counter medications to surgeries — even transportation to doctors’ appointments and in-home nursing care. But you have to prove the expenses you’ve incurred, and submit them so the insurance company has reasonable proof of loss. So save all of your receipts related to your medical care and expenses. Your attorney can organize your receipts later, but better to throw everything together in one big file if you are uncertain.
- Photos of the car and any visible injuries, such as after a surgery: Try to take photos of the accident scene and of both cars with your cellphone, if it is safe to do so. Most attorneys, including myself, work with professional photographers and videographers as well.
- All documents from your own auto insurance company and the insurance company of the driver who caused the crash: You will likely receive lots of paperwork from your insurance company once you make a claim, especially if you’re in a No-Fault state (like Michigan) and you’re making a claim for No-Fault insurance benefits. If you hire an attorney, your attorney needs to see the letters and correspondence you’ve received from your insurance company. An “explanation of benefits” from your health insurance company, or a letter summarizing your disability claim may seem unimportant, but it could be essential to your case and making sure your attorney doesn’t miss a bill or additional wage loss he or she can recover on your behalf.
Be cautious of adjusters contacting you with cash offers and quick offers of settlement after a car crash
Here’s where you need to be extra cautious. Let’s say an adjuster from the other driver’s insurance company contacts you and wants to offer you money for losses from the car accident.
Or you get a settlement check in the mail, which you never asked for, and it’s accompanied by paperwork explaining the money represents a “Full and Final Settlement of all Bodily Injury Claims.”
This is when I strongly urge you to contact an attorney as soon as possible — because insurers are notorious for making low-ball settlement offers with car accident victims who have very serious injuries but who haven’t retained an attorney and have no idea what their injury case is worth.
Why would the insurance company from the other side try to contact you early after a car wreck to try to settle with you?
According to the insurance industry itself, people who retain attorneys recover three to four times what unrepresented claimants recover.
So keep my two words in the back of your head if you’re in a serious car crash and hurt and thinking one day you may be forced to file a lawsuit to protect you and your family: Save everything.