The Evidentiary Black Hole

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Gather everything you think you will need for your lawsuit before you contact your lawyer. Why? Because the defendant in your case almost always has exclusive control of the evidence and the narrative once the case begins. This means that the defendant, an unscrupulous one, can pick and choose what documents and information it wants to produce in response to your request you will use to prove your case. Therefore, it is critical that you do all you can to get your hands on evidence you will need to prove your claim before you even think about contacting a lawyer. This is a difficult thing to do because, of course, most people don’t even know what their legal rights are until they find those out from a lawyer. Thus, a catch 22 many defendants know and use so well.

This sounds cynical right? Well, unfortunately, in my experience it is not. I’ll give you an EXAMPLE. I’m currently litigating a case against a perceived benevolent arts and craft store. This case involves a nice young lady who visited the store to buy some supplies for her classroom at a local Montessori school where she teaches. On this particular visit, the nice young lady placed her her three-year-old daughter in the child seating compartment of one of those skinny little shopping carts the yarn and glue barn provides for his customers. When the next cash register opened, our client gently pushed the cart forward. Suddenly, the front right wheel of the shopping cart buckled underneath, causing the car to flip over sideways, sending the three-year-old to the concrete floor headfirst. Our medical experts will testify that this little girl has a permanent brain injury which has resulted in a very obvious and disturbing physical tick of the neck and head, which will not go away. And she will suffer from limited executive function for the rest of her life. This is another way of saying that a once prestige little girl is now brain damaged as a result of someone’s (I know who) failure to make sure the wheels on the carts were inspected and maintained on a regular basis.

This seems like a fairly straightforward negligent case right? Well, it is not. Why? Because the defendant mysteriously misplaced the most critical evidence in the entire case – the shopping cart and the security video footage. Although we sent a notice and preservation of evidence letter to the defendant 34 days after the incident, defendant has lost this most important evidence. The defendant claims its video tapes are conveniently deleted after 30 days. They have no coherent explanation for the location of the shopping cart. The defendant’s policy has effectively placed a 30 day statute of limitations on our client if she wish to actually use any physical evidence in her case. This has left us in a he-said-she-said situation, which will almost certainly benefit the defendant.

The good news is that the Honorable Tanya N. Garrison has recognized the plaintiff’s dilemma. She crafted a well reasoned order sanctioning our arts and crafts store for its failure to take appropriate action to preserve evidence (attached). The frame slingers appealed this order only days before trial, putting the entire case on pause until the Court of Appeals how determine whether or not Judge Garrison properly applied Texas Supreme Court precedent (the Brookshire Brothers case, among others). Regardless of the decision by the court of appeals, this case will be tried in the very near future.

This is a cautionary tale. Get your hands on every piece of evidence you can think of, contact the defendant and document what is said, and leave no stone unturned before you contact a lawyer about your case. What does this mean? Help me to help you. Try to build your case before all the evidence ends up in the evidentiary black hole.

-JLE