The Power of Preservation
This year we have settled two Personal Injury Cases that highlight the need for preservation letters.
How to Properly Preserve:
- Make sure your Preservation Letter is addressed to ALL potential parties;
- The preservation should be sent out immediately after the incident;
- The preservation letter should be sent out in a manner which allows for proof of receipt;
- The preservation letter should demand a response in writing;
- You should follow up on the preservation until you receive a written response.
Case 1: Settled for 35-40K. Client was an elderly individual who recently returned home from a rehabilitation center for preexisting shoulder and back injuries. Client employed a home health care agency to assist her with bathing, dressing and assistance with daily living. During one of the visits the agency sent a nurse to the client’s home and an argument occurred related to the services being provided. As a result of the argument, the aide refused to help the client into the shower, which resulted in a slip, fall and exacerbation of back and shoulder injuries. The client signed up with our firm but wasn’t sure whether she wanted to pursue the matter. Even though the client was on the fence, our firm immediately mailed out preservation letters, which requested time sheets, employment schedules and payroll. Close to a year after the incident, the client decided they wanted to push forward with the matter.
The Defendant denied liability and made no presuit offers. Defendant stated that they had no record of the incident and no record of an employee that serviced the incident because they were bankrupt and insolvent. We were able to disprove this information by piecing together shift schedules, time sheets and payroll only to find out that an employee was in fact working on the date of loss. We compelled the name of the employee, only to find out that this individual was fired immediately after the accident and had other open complaints against their nursing license. We also found out that the agency misplaced the incident report related to the fall. Our firm threatened to Amend our Complaint to file a spoilation count and scheduled the deposition of the negligent aide. We settled the case 2 weeks before the depo.
This isn’t a perfect case. Its not a settlement that is going to make the client or the firm a whole lot of money. But its important to highlight that, but for sending the preservation letters out to the web of entities responsible there never would have been any justice for our client.
Case 2: Settled for over 100K. Client slipped and fell on water spilled in a highly trafficked state-owned public place. Client hired our firm and we sent preservation letters out to all the necessary parties including the public place and the maintenance/custodial firm for the public place. Specifically, we requested 12 hours of video footage before and after the incident. Unfortunately, client sustained major injuries and although she thinks she slipped on water she was in so much pain she wasn’t aware of the circumstances. She made statements in her deposition that she didn’t feel water, but she heard other people around her say that there was water on the floor. For anyone that has ever handled a premise liability case, this type of testimony can be a slippery slope towards losing in summary judgement. To make matters worse, the Defendants received our preservation letter but unapologetically preserved 10 second before the incident and 1 hour after the incident.
We immediately amended our Complaint to add a spoilation Count and used the evidence to create a question of fact in Summary Judgement. This case settled at mediation
In this case, we played the hand we were dealt. But for the preservation letter our client would have no right to assert that the Defendant failed to preserve evidence. One small misstep could have been the difference between losing at summary judgement and justice.