Recorded Statements: Why You Should Not Give and the Possible Exception

Most insurance adjusters tell personal injury lawyers that they need a recorded statement from the lawyer’s client to “firm up liability” or to “assess credibility.” But providing a recorded statement is typically a “loose-tie.” It rarely results in a finding on liability in favor of the accident attorney’s client. Not that this is always the case, but absent special circumstances, the downside far outweighs any benefits.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

  • Here is one fun trick when the third party insurance carrier asks for your client’s recorded statement

Uninsured Motorist Exception

recorded statementsA critical caveat is in personal injury accident cases involving an uninsured or underinsured case. Because these claims are breach of contract cases, the accident lawyer’s client’s insurance policy contains language making a statement to the uninsured motorist carrier a condition precedent to the accident victim’s recovery under the policy.

The personal injury attorney should not assume it necessarily requires compliance. This is so where the claim was denied. The accident lawyer should check to see when the claim was denied. If it was denied before the claim representative requested the recorded statement, the lawyer may have grounds for refusing a statement, claiming breach of contract. If this is the case, the lawyer should set up this claim in writing with the claims adjuster.

If your client must give a statement in an uninsured motorist case, the best way to avoid disaster is to treat it as if the lawyer were prepping the client for his or her deposition. The accident attorney should discuss the client’s statement with the client before he or she gives it and should have the client give the statement at his or her office. The lawyer should take part in the call the client makes to give a recorded statement and should object to improper questions, remembering the Maryland Rules or the attorneys’ local rules of procedure do not apply, giving the lawyer far more latitude. Finally, let the claim representative know you insist on a copy of the statement.

On a personal note, the lack of posts this week has been because of my vacation (this post is from Club Med in Florida). I return on Wednesday when more frequent posts will continue.

Other Exceptions

I hate blanket rules and the “NEVER give a recorded statement to third-party insurance company rule” also has random exceptions.  Sometimes, the insurance company wants a statement on a single issue that can be resolved easily with a statement.  In this situation, there is sometimes real wisdom in just giving the recorded statement.  There are also cases where failing to give a recorded statement will lead to a lawsuit.  Which is fine unless you have a client who says they are never suing under the circumstances.  So 99.9% of the time my client is not giving a recorded statement.  But I think there is wisdom in not putting your feet in concrete in too many issues in personal injury litigation.

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