BUILDING A SOLID FOUNDATION FOR DEFENSE: STATEMENT TAKING TECHNIQUES

Transcription

1 BUILDING A SOLID FOUNDATION FOR DEFENSE: STATEMENT TAKING TECHNIQUES Presented and Prepared by: Heidi E. Ruckman hruckman@heylroyster.com Rockford, Illinois Heyl, Royster, Voelker & Allen PEORIA SPRINGFIELD URBANA ROCKFORD EDWARDSVILLE CHICAGO 2011 Heyl, Royster, Voelker & Allen L-1

2 BUILDING A SOLID FOUNDATION FOR DEFENSE: STATEMENT TAKING TECHNIQUES I. THE FIRST BATTLE... L-3 A. Introduction... L-3 B. What Kind of Statement to Take... L-3 II. THE TACTICAL DECISIONS... L-4 A. Why Take a Statement... L-4 1. Fact Finding Mission... L-4 2. Lock in Parties and Witnesses Version of the Incident... L-4 3. Assist With Initial Case Assessment... L-4 B. Whose Statement Should Be Taken... L-5 1. Plaintiff/Claimant... L-6 2. Defendant/Insured... L-6 3. Witness... L-6 C. When to Take the Statement... L-6 D. How to Take the Statement... L-7 1. Prepare an Outline, But Do Not Feel Like You Can t Deviate From It... L-7 2. Medical Treatment/Injuries... L-8 3. Determine the Current Status... L-9 4. Closing Out the Statement... L-9 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. L-2

3 BUILDING A SOLID FOUNDATION FOR DEFENSE: STATEMENT TAKING TECHNIQUES I. THE FIRST BATTLE A. Introduction Many plaintiffs firms warn their potential clients about providing a recorded statement to insurance companies. One firm wrote on its website, "never give an adjuster a recorded statement. They will use it against you." It went on to inform would-be clients that insurance companies will not even give them a copy of their own statement until they litigate against them. Another website called settlementcentral.com, informed readers that an insurance company will try to get their statements under the ruse that it needs their version of the accident for its records to confirm liability against their insured and that the insurance company will claim it needs their medical information and records to make the injured a fair settlement offer. However, it warned people not to give a recorded statement to anyone. It explained on the website that this is because most people do not "think very well on their feet" and "tense up under the pressure of answering questions for a recording." It warned individuals that they may forget important things that should be included in the statement. Likewise, it warned them that the adjuster is your adversary" and should always be treated as such. Furthermore, there are advertisements which coach people on how to provide written statements to insurance companies. At ehow.com, the site informs the injured party that he/she should always talk to an attorney first, never admit guilt, do not apologize as it may be used against them, do not give specifics about their injuries, and do not inform insurance companies about their doctor's name or location. It advises the person to present factual, but general information as "going into detail could give the insurance company ammunition to use against you." B. What Kind of Statement to Take An adjuster can obtain a written statement or a recorded statement. Although there are benefits and drawbacks of both, a recorded, transcribed statement is preferred. First, you have more control over the statement being provided. You can ask the questions and follow up on matters which are not clear or you feel may need further explanation. Second, you are ensuring the statement will be completed. Many times when an individual is asked to provide a written statement, even if it consists of answering questions about the incident, they will fail to complete all of the questions, may not return it, or may be getting "assistance" or coaching from others, including an attorney. Therefore, a recorded statement will allow you to obtain information about the accident, potential witnesses and alleged injuries within a relatively short period of time. L-3

4 II. THE TACTICAL DECISIONS A. Why Take a Statement When a new file is assigned to an attorney, many times the key documents used to assist with the initial development of a defense strategy includes the transcribed statements of the parties and witnesses. This is especially true when a police report has not been generated, no medical records have been obtained, or the alleged damages consist of property damage. 1. Fact Finding Mission A statement allows the defense to gather information about the claim. Many times statements are taken close in time to the accident itself when the facts and/or memory of the accident is the clearest. Of equal importance, if the claimant has not consulted with an attorney, he or she may be more willing to speak freely about the accident and his/her injuries. This is an opportunity to obtain information about the claimant s background, events leading up to the accident, the accident itself, property damages, whether any photographs exist, physical injuries, medical treatment the claimant has received, whether the claimant is unable to work as a result of the injuries, and whether there are any witnesses who could be contacted. 2. Lock in Parties and Witnesses Version of the Incident Although these statements are not provided under oath, they help "lock in" party or witness testimony. They can be used to challenge a party's recollection at a later date during the discovery deposition when testimony conflicts with information he/she provided in the statement. For example, during a deposition, if a plaintiff suddenly remembers that the defendant was driving 25 miles per hour at the time of the impact, but advised in his earlier statement that he did not know or did not see the defendant prior to impact, the statement can be used to press him on cross examination. Examination during the deposition can establish that the plaintiff did not know the speed when he first gave a statement at a time which was closer to the accident when his memory would be more clear. Likewise, if a plaintiff provides a statement that he was not injured or only injured a particular area of his body, but then claims additional injuries once suit is filed, the statement can be used to challenge these allegations. 3. Assist With Initial Case Assessment A statement also assists with formulating the initial assessments of the plaintiff's claim. You, as the adjuster, have the first opportunity to speak with the claimant and begin to assess his/her credibility. Is he/she an articulate individual who will make a good witness? What is his/her background? Is this person now unable to work due to his/her injuries or a parent who is now injured and unable to care for his/her children, etc. Based on the person's description of their injuries, one can evaluate if the injuries consist of soft tissue injury that may require conservative treatment and be resolved in four to six weeks or whether it is a cervical fracture which may require surgical intervention. The foundation for these initial determinations begins with the gathering of essential information during the statement taking. L-4

5 Conflicting statements offered by witnesses and parties as to who had a green light or whether the pedestrian darted out in traffic, outside of the cross walk, while wearing dark clothes at night will assist with evaluating whether liability rests with the insured. These witnesses may be listed on the police report, but it is not until they are asked specific questions regarding their recollection of the accident or the speed of the vehicles that one will really be able to assess the potential issues pertaining to the insured's liability. Of equal importance, when obtaining a statement from the insured it is important to determine whether the insured was issued a citation as a result of the accident and whether he/she pled guilty. Although a guilty plea can sometimes be explained away, many times certified copies of the convictions are used by a plaintiff at trial as evidence of negligence. Again, all of this information provided prior to commencing with formal discovery can be used to determine liability. The information obtained in a statement will allow both an adjuster, and if suit is filed, an attorney, to assess the strengths and weaknesses of a claim. It will also help with determining a defense strategy. Is this a case which will be settled or litigated? Are there affirmative defenses which can be alleged with the answer? Affirmative defenses can be pled without leave of court when filed with the answer. Many times the information contained in a statement provides the initial basis for those affirmative defenses. The information contained in the statement also highlights to an attorney issues which should be further explored during discovery depositions so that testimony and/or admissions can be obtained in order to support potential counterclaims against co-defendants, possible third party complaints, or dispositive motions. B. Whose Statement Should Be Taken There are no hard and fast rules which dictate whose statements should be taken. An adjuster can use the information reported with the claim, the police report or the information provided by the insured to determine whose statement should be taken. A witness statement should be taken for several reasons. First, it allows the defense to learn what these witnesses will most likely testify about. This information can be used to assist the attorney in determining whether or not the discovery deposition of these individuals should be taken. Although this decision to take a discovery deposition typically does not apply to the parties, it is very important when it comes to deciding whether or not to take the deposition of a witness when there is a cost associated with doing so (i.e. attorney's fees, court reporter, etc.), when you have no reason to believe the witness' testimony will be any different from what was provided in the statement, or the statements will be harmful to the insured's position. As such, an attorney may decide the drawbacks of taking the deposition will outweigh any positive ground that may be gained and decide not to take the deposition. Therefore, the information contained in the statements provide an attorney with a "snap shot" of what to expect and as such, will assist with framing issues and determining what information should be obtained from a witness or a party. L-5

6 1. Plaintiff/Claimant No matter what type of claim, the plaintiff's/claimant s statement is extremely important. This is an opportunity to speak directly with the plaintiff/claimant shortly after the incident. You can obtain information regarding the alleged injuries and medical treatment plaintiff/claimant has received. Furthermore, it is an opportunity to begin to assess the plaintiff/claimant s credibility and demeanor. 2. Defendant/Insured Although the defendant/insured is more accessible, it is still helpful to obtain a statement of his/her version of events when it is relatively close in time to the accident/incident. These statements can be used to refresh the insured's memory at a later time, possibly a few years later if the suit has been filed. Furthermore, if the insured provides information in the statement that he did not see the plaintiff before the impact, that he was exceeding the speed limit or looked away from the road for whatever reason, this information will help with evaluating the case. The insured's statements given to his insurance company are privileged from production. Monier v. Chamberlain, 66 Ill. App. 2d 472, 213 N.E.2d 425 (3d Dist. 1966) held that the statement given by an insured to his insurance company for the purpose of allowing the company to defend him under the terms of its policy is considered to be a privileged communication in the hands of the insurance company. It is clothed with the same exception from disclosure as if the statement was given directly to the attorney. Likewise, the First District determined that an insurer-insured extension of the attorney client privilege applies to a communication which is made by the insured to his insurance company for the predominate purpose of protecting the interests of the insured. Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541, 810 N.E.2d 217, 284 Ill. Dec. 564 (1st Dist. 2004). 3. Witness Witnesses tend to disappear, move, or later on decide they do not want to be involved in the litigation. While taking a statement, the adjuster has the opportunity to confirm the witness address and telephone number and can also inquire as to where the individual is employed or if there are plans to move. All of this information is very helpful later when the phone number has been disconnected or the mail is returned with no forwarding address. This is particularly true when the witness version of the accident, as provided in the statement, bolsters the defendant s version. As such, a witness can be the key to defending a case because they are independent third parties who typically do not have a bias. C. When to Take the Statement The earlier the statement can be taken the better. As mentioned above, an individual's recollection of the event may be the clearest when it is only a few days after the accident. L-6

7 Likewise, witnesses may later move, or a claimant may decide to retain an attorney who will prohibit his client from providing a statement. D. How to Take the Statement 1. Prepare an Outline, But Do Not Feel Like You Can t Deviate From It An outline assists with ensuring that the areas which should be addressed will be covered. However, this should be used only as a guide. For example, often times an individual will provide a response to a question, but once it is reviewed one can see that it was not actually an answer to the question asked. Furthermore, many times the responses will lead to follow up questions which will provide more important information. However, that opportunity will be missed if the follow up questions are not asked. Many times it is easy to spot an experienced adjuster who uses the individual s answers to guide the next area of inquiry. In addition, one should not be afraid to ask a "dumb" question. For example, if the witness provides an answer that you do not understand or uses a term you are not familiar with, you should inquire further. Once those follow up questions are explored, having an outline allows you to come back to the issues which must be addressed and ensure that all of the key topics are covered. The key to taking a good statement is working to obtain as much information as possible about the witness' knowledge, closing as many doors as possible by getting the witness to commit to a version of events and/or the extent of his/her injuries, and obtain as many admissions as possible. (a) Start the Statement It is helpful to start the statement by explaining the process to the individual providing the statement. Many times the individual does not know what they will need to do or what to expect. This also provides an opportunity to establish some ground rules. For example, advise the individual that if for any reason he does not understand a question, to let you know and that you will rephrase it. Likewise, if for any reason they do not hear your question they should let you know. This makes it more difficult for the claimant to attempt to change his answer at a later date during a deposition by claiming he did not understand the question. In addition, this is an opportunity to establish a courteous demeanor, which will provide you with the best opportunity for obtaining information. Also, take this time to explain that the conversation is being recorded. As such, ask the witness to allow you to finish your questions before he responds with an answer. This will ensure that the statement is clear. Many times a statement, when transcribed, consists of unfinished questions and vague answers. Likewise, try to ask simple questions that are open ended. This will give the claimant an opportunity to give answers based on what he believes is important and relevant. (b) Obtain Background Information During the statement taking process, ask questions which obtain identifying information such as a person's full name, date of birth, address, social security number, driver's license number, and telephone number (including a cell phone). Furthermore, it is important to ask if the individual has any plans on moving in the next few years and if so, where they may be moving to. If they L-7

8 will tell you, it is helpful to find out whether they are married, the name of their spouse, and whether they have any children. Try to establish if they are employed, and if so, where they work, how long they have worked there and what job duties they may have. This not only assists in attempting to locate potential witnesses in the future, but it also helps with assessing a witness credibility or, in terms of the claimant, determining if he will attempt to allege a wage loss claim. (c) Information Re: the Accident/Incident During the statement, try to obtain as much information as possible regarding a description of the accident or a premises injury, etc. The following lists are to be used as suggestions for possible areas of inquiry. However, they are not to be considered exhaustive. (1) Auto Areas of Inquiry: the events leading up to the accident, who the claimant may have been with, what the plaintiff or witness had been doing prior to the accident, the date, the time of day, the weather conditions, traffic conditions (light or heavy traffic), what lanes the vehicles were traveling in, the sequencing of traffic control devices, where the person had been traveling to and from, all of the occupants in each vehicle, a description of the accident itself, speeds, distances, where the vehicles impacted, the damage done to the vehicles, whether the vehicles were drivable, whether the parties were able to get out of the vehicles and walk around at the scene, were there any discussions at the scene (including with police officers and witnesses), names and addresses of any witnesses, whether claimant experienced any pain in any part of his/her body at the scene, whether anyone was transported by ambulance from the scene and whether they know if any photos exist. (2) Premises Areas of Inquiry: who was present at the premises when the incident occurred, activities leading up to the incident, description of the scene and specifically where the incident took place, how the incident occurred, the exact position of the claimant, did the claimant trip, stumble, miss a step, any other witnesses, was claimant carrying any objects, was he/she distracted (watching something, talking, looking somewhere else), who owned the premises, type of premises (one family-apartment), age of the premises, was the claimant there by invitation, any prior visits to the premises, physical condition of the claimant, the type of clothing claimant was wearing, the weather conditions, the lighting conditions, any conversations at the scene, any reports made, whether claimant experienced any pain in any part of his/her body at the scene, whether anyone was transported via ambulance for any treatment, and whether they know if any photos exist. 2. Medical Treatment/Injuries Use the statement to establish what injuries the claimant alleges he sustained as a result of the incident. Inquire as to when the claimant first realized he was hurt. It is important to inquire as to the claimant s doctors, when the claimant first went to see the doctors, how many times the L-8

9 claimant has been seen and whether they have any appointments currently scheduled. If possible, in addition to the doctor s names, attempt to obtain information regarding the facility each doctor is associated with so that medical records and bills can be requested. Information received during the statement from a claimant also assists with determining if there was a gap in treatment, i.e. the claimant waited three weeks after the accident before seeing his doctor for the first time. 3. Determine the Current Status While taking the statement, it is helpful to inquire as to whether or not the claimant is employed, if he/she has been able to work since the accident, if a doctor has placed any work restrictions on them, when the claimant plans to return to work, what hours/shifts the claimant worked prior to the accident, and how much money the claimant was making at the time of the accident. In addition, inquire as to any current pain complaints the claimant may have, a detailed description of the pain the claimant is experiencing, whether they are not able to participate in certain activities, and whether the claimant is taking any medications. 4. Closing Out the Statement Once you feel that you have completed the statement, it is helpful to confirm with the claimant that he heard your questions and understood them. Likewise, at this juncture, you can give the claimant the opportunity to offer any other information about the incident that he may not have been asked about, but he thinks may be relevant. L-9

10 Heidi E. Ruckman - Of Counsel Prior to joining Heyl Royster, Heidi was in private practice and concentrated in the areas of personal injury defense and related insurance matters. She represented corporate clients in contract and business related disputes. These clients included mortgage companies, construction companies, excavation companies, gas station owners, disposal companies, farm chemical companies, automobile dealerships, and real estate companies. Heidi also represented municipalities in various litigation matters and zoning issues. Heidi has tried a number of these cases to verdict. She joined the firm's Rockford office as an Of Counsel Attorney in September Since joining the firm, Heidi concentrates her practice in the defense of corporations in contract and business related disputes, the defense of health professionals who offer care in prison settings, and agricultural law litigation matters. Professional Associations Winnebago County Bar Association (Trial Section) Illinois State Bar Association Winnebago County Arbitrator Court Admissions State Courts of Illinois United States District Court, Northern District of Illinois Education Juris Doctor, The John Marshall School of Law, 2000 Bachelor of Arts-Political Science with an emphasis on public law (Summa Cum Laude), Northern Illinois University, 1997 L-10 Learn more about our speakers at