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America's Top 100 Personal Injury Attorneys
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Martindale-Hubbell Preeminent For Ethical Standars and Legal Ability

Notice to Defendants & Insurer to Preserve Evidence

Along with a rapid initial investigation, the attorney representing the victims in a large commercial trucking accident should put the motor carrier, driver and insurer on notice to preserve evidence.

Since electronic evidence and some documents may legally begin to disappear within days or weeks, it is essential to send such a notice almost immediately. Failure to preserve evidence after being put on notice to do so may result in spoliation sanctions including admission or exclusion of evidence and an adverse inference jury instruction.

Anyone who does not believe that trucking companies purge their files of damaging documents as soon as possible if there is no formal demand to preserve evidence, is dangerously naive. We have seen cases where trucking companies and their insurers apparently preferred to risk a jury instruction about an adverse evidence than to allow a court and jury to see the truth.

Trial judges have broad discretion in ruling on spoliation issues, and the Court of Appeals is reluctant to disturb such discretion. Therefore, it is prudent to pare down a template spoliation letter to those items that are reasonably likely to exist and be relevant in the particular case, lest a trial judge find the length of the list of items designated to be overly broad and burdensome.

Georgia does not recognize an independent, third-party tort of evidence spoliation.

Client Reviews

Attorney Ken Shigley - did his lawyer thing - and increased my "take home amount" of settlement - the amount after paying core medical & legal fees - by over 3000% (three thousand percent) more than what some other law firms could do. He and courtney (his assistant) were like family! True blessings.

Louise W., Client

My mother was a passenger in a horrible car crash in Georgia when the car in which she was passenger was hit by an ex-convict who had no insurance, and who later died from a cocaine overdose. When I learned of mom's injury, I immediately flew in from California. As I work in Silicon Valley, I...

John P., Client

After my parents were killed in a tractor truck accident on December 2013, he fought hard against the insurance companies to help my brother, sister, and I. He was honest and always available to answer any questions I had. Ken went out of his way to meet with my brother and I while on vacation in...

Joan M., Client

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