How to Prove a Personal Injury Claim

To win compensation through a personal injury claim, you have to prove another party is liable for your injuries. You have to establish several elements of your theory of liability. In most cases, you’ll allege the other party is liable based on negligence. It’ll take various types of direct and circumstantial evidence to prove the defendant’s negligence harmed you.

The Elements of Negligence

There are four distinct elements of negligence. You have to prove each element to recover compensation. If you can’t establish one or more elements, then an insurer can deny you a settlement, or a jury can rule in the defendant’s favor.

Duty of Care

You must prove the defendant had a duty of care toward you. Usually, other people have a duty of ordinary care. They’re supposed to act like reasonably prudent people would under the same or similar circumstances. In other words, they’re supposed to be careful and avoid hurting others. The defendant’s duty of care, though, can depend on the circumstances.

Breach of Duty

Once you prove the other party had a duty toward you, then you have to prove they breached it. You must present evidence that the defendant failed to act like they should or behaved badly. This might require showing a jury how something should have acted compared to how the defendant actually behaved.


It’s not enough that a defendant was careless. You have to prove their carelessness caused the accident in question. Causation has two parts: direct cause and proximate cause. You’ll have to establish that the occurrence wouldn’t have happened without the defendant’s conduct and that no one else’s conduct was a more significant cause (though more than one person can be liable for your injuries).


You have to prove you were actually hurt in the accident. You’ll need to present proof to the insurer or jury of your physical and emotional injuries. You won’t receive compensation if the defendant was careless and caused an accident, but you’re fine.

Other Theories of Liability

Most personal injury claims are based on negligence. But this is only one theory of liability. There are many others. Depending on your circumstances, you might claim the defendant was grossly negligent, strictly liable, or breached a warranty or contract. Your New York personal injury lawyer will discuss the reason why the defendant is liable and the elements of proving that reason in court.

The Burden of Proof

You also have to meet a burden of proof. This is the standard of how much evidence you need to provide to prove your allegations. In a personal injury claim, you have to prove the defendant’s liability “by a preponderance of the evidence.” This means the jury can agree that it’s more likely than not the defendant is responsible for your injuries. This is a lesser burden of proof than “beyond a reasonable doubt,” which is used in criminal cases.

You Need a Lawyer to Conduct an Independent Investigation

You need evidence to prove negligence by a preponderance of the evidence. Your personal injury lawyer will gather that evidence through an in-depth and independent investigation. If you filed an insurance claim, then the insurer is required to investigate the accident. But you shouldn’t rely on the insurer’s findings and conclusions.

It’s best to work with an attorney who will investigate the case with your best interests in mind. Your attorney might find different or additional evidence from the insurer. They also might reach a different conclusion from the insurer based on the available evidence.

The Investigation Process

We’ll take several steps during the investigation process, including:

  • Gathering a full statement from you regarding what happened leading up to and during the accident;
  • Obtaining a copy of the police report;
  • Obtaining copies of any photos or videos of the accident;
  • Interviewing eyewitnesses to the accident;
  • Obtaining copies of your medical records;
  • Consulting with a medical expert regarding how to prove your injuries and the resulting pain and suffering;
  • Obtaining lost income verification from your employer;
  • Gathering financial records to establish your past and future lost income; and
  • Consulting with an economic expert if a disability makes you unable to return to work.

Investigations Continue Through Discovery

Your personal injury lawyer will investigate the accident and your injuries as thoroughly as they can. But there might be evidence your lawyer can’t reach without filing a lawsuit. Once you file a personal injury lawsuit, you enter discovery. Each side can use legal tools to gather information from each other. This is how your lawyer continues to investigate your claim and gather additional evidence that can help you prove your case.

How Your Lawyer Gathers Evidence During Discovery

Your lawyer will use depositions, requests for admissions, interrogatories, and requests for production of documents during discovery.

  • Depositions are out-of-court interviews with witnesses and other material parties.
  • Requests for admissions require the defendant to admit whether certain statements are true or false.
  • Interrogatories are questions the defendant must answer.
  • Requests for production of documents require the defendant to hand over certain information, such as hardcopy or digital business records or communications.

Types of Evidence

There are many types of evidence your lawyer can use to prove your personal injury claim.

Direct Evidence

Direct evidence speaks for itself. A juror isn’t asked to infer anything from this type of evidence. Examples would include a defendant admitting fault or eyewitness accounts of what happened. Another example is video footage of a car accident.

Circumstantial Evidence

Circumstance evidence suggests something is true. When your lawyer presents circumstance evidence, they’re asking the jury to infer something or connect something with the accident. Your lawyer might introduce the defendant’s phone records to prove they were texting and distracted while driving.

Examples of Direct and Circumstantial Evidence

There are many kinds of evidence your lawyer can present in court. Most types of evidence can be either direct or circumstantial evidence depending on the circumstances.

Common kinds of evidence used in personal injury cases include:

  • Police reports
  • Physical evidence
  • Photos
  • Video footage (dash cameras, traffic cameras, surveillance cameras)
  • Audio recordings
  • Eyewitness testimony
  • Business documents
  • Medical records
  • Medical documentation, data, or charts
  • Bills and receipts
  • Financial records
  • Expert testimony

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Do You Know How to Prove Your Personal Injury Claim?

Some personal injury cases are straightforward. If you are rear-ended by a distracted driver and suffer minor injuries and property damage, insurance will probably take care of it quickly. But when you suffer serious or catastrophic injuries in an accident, your damages will be significant. You need to establish your claim as clearly as possible. You need a lawyer who knows how to investigate an accident, uncover evidence, and present that evidence to a jury in a convincing way. All of these tasks help you obtain the maximum compensation for your injuries.

To talk with an experienced personal injury lawyer about how to prove your claim, call Hecht, Kleeger & Damashek, P.C. at (212) 490-5700. You can use our online form to send us your information and request your free initial consultation.

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