#left cross

It’s important to note that even when there’s a dispute about how a crash occurred, and there isn’t a witness available, there are still some clever ways to piece together what happened and prove that the driver was at fault.  For instance, impact damage and the details of injuries can be extremely valuable evidence.  I had a case where my client was doored, and the driver swore up and down that she was riding the wrong way down the street at the time.  Because of this, his insurance company denied that he was at fault.  However, they were quick to change their tune after I sent the ER records and photos of stitches on the back of my client’s right hand.  I remember patiently explaining to the junior claim adjuster that the laceration was from her hand making contact with the sharp edge of the driver’s open door, and that if their driver was telling the truth, the injury would have been to her left hand.  The direction that a bike’s frame or wheel is bent, or the paint markings left on a car’s hood can similarly tip the scales when a driver is lying (misremembering?) and things appear deadlocked.

However, there are still plenty of cases where these factors aren’t present, and it’s just your word against the driver’s.  For example: the driver swears he had a green light, and that you were coming in the opposite direction and turned left in front of him. You agree that that’s what happened, but you’re 100% sure that you had a green arrow, which means that the driver’s light was red.

The law says that vehicles turning left (you) must yield to oncoming traffic (him), but your duty to yield becomes irrelevant if that oncoming traffic was supposed to be stopped at a light.  Therefore, this entire case turns on the color of the traffic light when you and the driver entered the intersection.

Remember: if we can’t prove the color of the light, I probably won’t be able to get you any compensation for your injuries and your wrecked bike.  Even worse, they may try to get you to pay to fix the damage to the front of his car!

In cases like this, the only way that we can prove that the driver was at fault is with a witness.

The best type of witness meets all three of the following criteria:

someone who saw the whole thing, and saw it from the right angle.

someone you don’t know, and who doesn’t know you, i.e., “disinterested.”  other bikers are good, other bikers you’re riding with are still ok, but it’s best if the witness is someone you don’t know.

someone who is willing to take the time to describe what they saw.

In the above example, an ideal witness would be the person in the car behind the driver who hit you.  They were in a position to see the color of the light, and had a reason to be paying attention to it (they were waiting to go themselves).  They also probably don’t know you or the driver, so they’d qualify as disinterested.

So let’s say this other driver pulls over after seeing the crash and is with you on the side of the road, checking to make sure that you’re ok—now is the time to do what you can to enlist their help as a witness!  All you have to do is ask for their name and contact information.

The thing is, it can be a tricky request to make.  That’s because, while most people want to help, they’re usually not exactly sure about what they’re getting themselves into when they agree to be your witness.  They often assume that they will have to testify in court, which would mean taking a day off work, and that’s a pretty big ask coming from a complete stranger.

Thankfully, in most cases like this, going to court won’t be necessary.  The reality is MUCH simpler than that: all they have to do is provide a brief written statement, describing where they were and what they saw.  In my experience, it can be as informal as a quick email.

With that in mind, when you ask for their contact info, you can do it in a way that addresses their concern: “Can I have your email address? I may need you to write up a description of what you saw.”  It’s as easy as that.

A few points to remember:

Pedestrians can be witnesses too!  Drivers or other cyclists are more likely to observe a crash while in traffic, but don’t rule out the people walking by on the sidewalks.

When it comes to witnesses, the more the merrier.  I have handled a number of cases with multiple witnesses, where each one saw a different element of the crash, and I was able to combine their statements to piece together how a crash happened.  Bottom line: get the digits now, we’ll sort the rest out later.

The police often interview witnesses after a crash, but they don’t always end up including their statements or their contact info in the report.  That’s totally useless.  The police also tend to pick one witness to give them a statement, and tell everyone else that they can leave.  I understand that this is likely done in an effort to save time and avoid inconveniencing too many people.  However, if they happen to pick someone who didn’t see the right part of the crash, they may end up dismissing someone who saw the whole thing.  Don’t leave it to the police: do what you can to get contact info from potential witnesses directly, in case they drop the ball.

The point of explaining all of this so that you know what to do if you’re ever in a crash, but there’s another important lesson here: you now know how important you could be as a witness for someone else.

As a community, we all need to have each other’s backs out there.  Being a witness after a crash is one of the most significant ways we can do that.  I would go so far as to say that we each have an affirmative duty—ethically, if not legally—to go out of our way to make ourselves available if we witness a crash.  After all, you’d want that help if you ever got hit, right?

So if you ever happen to see a crash occur, don’t just stop and ask if the rider is ok.  Don’t just help them gather their things.  Don’t just render first aid and wait with them until the ambulance arrives.  All of these things are great, but we must go that extra mile: you need to absolutely insist that they take your contact information, even if they don’t think they need it.  They may never call, and that’s ok.  Or, they could, and a few minutes of your time could mean the difference between a bicyclist getting compensated, and another driver being let off the hook for causing a crash.  It’s up to you.

Yours,