What to Do if Evidence Goes Missing in a Personal Injury Lawsuit

No matter how simple courtroom dramas may make it look, the American legal system is a complicated beast. Attorneys need to research similar cases, file stacks of motions, and respond to an equally large stack of motions from opponents. And all of that is before they even enter a courtroom.

Trials are also filled with several dilemmas and roadblocks. Judges may make unexpected rulings, witnesses may recant testimony, or evidence may go missing at the worst possible time.

The last can be devastating, especially if the evidence was critical to the success of your case. In the worst case, when evidence goes missing, you could find yourself in a situation where you can no longer prove the underlying facts of your claim. Even in the best case, missing evidence will probably cost you money.

A good personal injury lawyer is prepared to deal with unexpected situations like this, but it is never something anyone wants to deal with. That is part of why you always want to retain the best attorney possible. That way, if something goes wrong, your lawyer knows how to respond.

When you need a high-quality personal injury lawyer, contact Morgan & Morgan for a free case evaluation.

How Evidence Goes Missing

Evidence can go missing in several ways. Some of these ways are easy to deal with, while others can be devastating. Experienced attorneys have dealt with these types of problems before and will have backup plans if evidence goes missing.

A Witness Doesn’t Show Up for Trial

Testifying at a trial isn’t optional. If the court requires you to be available to testify, you can’t choose to stay home instead. At least, you can’t do it legally.

Unfortunately, sometimes witnesses don’t appear. This can destroy a case if the witness has crucial testimony. Even if the testimony isn’t critical to the case, your case is likely to suffer when a witness doesn’t show up in court.

Lawyers intentionally order their witnesses to tell a cohesive story. When one witness isn’t available, that usually means some portion of the story is missing, and the jury might need to make a logical leap to understand the story being told.

This creates problems even if a witness is only temporarily unavailable. For example, if they are sick but can provide testimony a few days later, that still disrupts your case. Now the story is being told out of order, and jury members may be confused.

When a witness isn’t present, your attorney will usually request a postponement of the trial so that they can attempt to contact the witness. Alternatively, they may try to replace that witness with someone else who can provide similar testimony. In the worst-case scenario, they will continue without that testimony.

The Court Loses Evidence

When you present evidence at a trial, the court takes possession of it. This allows the jurors to examine the evidence during deliberations. However, while rare, the court can lose that evidence before the end of the trial.

If this happens, the judge will probably attempt to correct the error. And if that isn’t possible, your attorney may also be allowed to replace the missing evidence. In the worst-case scenario, the judge might give instructions to the jury to make up for the lost evidence.

You Lose the Evidence Before the Trial Begins

Possibly the worst situation is one where you have possession of evidence and lose it before your case goes to trial. This could happen, for example, if you lose documents or photographs.

If the evidence has been destroyed, you will probably have to continue to trial without it. Your personal injury lawyer may be able to use alternate evidence to support your case, but they will likely have to take a different approach to the trial.

There may be a chance to recover the evidence if other parties have access to it. For example, if you lose medical records, your personal injury lawyer may be able to contact the doctor or hospital that created those records and get new copies. This could be challenging if they are old, but it doesn’t mean it is impossible.

The best way to avoid this situation is to give any evidence in your possession to your personal injury lawyer as soon as they take your case. Morgan and Morgan has experience storing critical evidence in such a way that it won’t be lost, stolen, or destroyed.

The Opposing Personal Injury Lawyer Reports That Evidence Has Been Lost

Typically, you should rejoice if this happens. If evidence has been lost that would harm your case, you have a better chance of winning. There is a good chance that if this happens, the other side will attempt to negotiate a settlement rather than continue with a case it can’t win.

The other possibility is that evidence went missing that would support your case. This can happen when your personal injury lawyer subpoenas information. While this may sound bad for your case, it could potentially help you.

The other side is required to answer your subpoena, and it is illegal to destroy evidence. A judge will likely consider any lost evidence to be a violation of court rules and may make rulings against your opponent. In short, you will probably benefit from the content of the evidence, even if the other side claims it is lost.

Consequences of Missing Evidence

The consequences of evidence going missing in a personal injury lawsuit depend on what evidence went missing, how important it was to the case, and how far the case was along in the process.

Missing Evidence Leads to Negotiations

Usually, when evidence goes missing, one side gains an advantage in the case. If that advantage is large enough, there is a good chance that one of the attorneys will attempt to negotiate a settlement rather than continue the trial.

Even if you benefited from the evidence going missing, it is usually worthwhile to entertain these negotiations. Just because you have the advantage at trial, you can’t be certain you will win. However, if your attorney negotiates an acceptable settlement, you know exactly how much money you will get, and you will get it sooner than if you had to wait out a trial.

Conversely, if your situation worsened due to evidence going missing, you might still be able to scavenge something out of it. Typically, even if the insurance company has the advantage, it will have to pay something at the end of a trial. And it also has to pay for lawyers. It is usually worth paying you some money just to avoid those costs.

Missing Evidence Leads to Trial Delays

If important evidence disappears, you should expect that one attorney or the other will ask for additional time to make their case. And as long as the judge believes they are acting in good faith, they will probably get that extra time.

This is frustrating if you have mounting medical bills that aren’t being paid. Your attorney may be able to negotiate a partial payment to tide you over by agreeing not to oppose the request for extra time. But unfortunately, this delay will usually just be harmful to you and your case.

Missing Evidence Leads to a Dismissal

The worst-case situation for you is when the judge dismisses a case because the lost evidence makes it impossible for you to prove your claim. You might have the option to file another lawsuit if you find additional evidence, but the statute of limitations could prevent that.

Missing Evidence Leads to a Judgment in Your Favor

The best situation is one where the evidence that went missing was critical to the case of the insurance company. And without that evidence, the judge or jury had no choice but to rule in your favor. This is very unlikely, so you shouldn’t count on this type of situation.