Beware “Out of Court” Statements

Beware out of court statements!As everybody who’s ever watched “Cops” or another crime show on TV knows, suspects must be read their “Miranda warning” before being questioned by police. The purpose of the warning is to place suspects on notice that:

  1. They don’t have to answer questions (i.e. may “remain silent”)
  2. Anything they say may be used against them
  3. They have the right to an attorney, and to have the attorney present during questioning

Civil procedure, which applies to personal injuries such as slip-and-fall cases, dog bites, car accidents, and so on, is of course very different. Thus the provisions of the law that came into effect in the aftermath of Miranda vs. Arizona don’t apply. But if you’ve been injured, you may want to take the spirit, if not the letter, of this case to heart.

At the scene of an auto accident, for example, emotions often run high. Many people feel guilty—even if they didn’t cause the accident—or fear being criticized. Thus, the urge to “apologize” is often strong.

If you end up being the plaintiff in a civil suit, however, you should be aware that any statements you make at the scene of the accident or elsewhere (known as “out of court” statements because they are not made in a formal setting under oath) can indeed be “used against you.” All too often, accident victims have made statements like “I must have been asleep,” “I wasn’t paying attention,” or “there must be something wrong with my car.” Especially if made in the presence of witnesses, such statements can provide powerful ammunition in the hands of defense attorneys—who usually won’t “play nice,” but will rather use every possible legal means to reduce or eliminate any liability on the part of their clients. After all, that’s what they’re being paid to do!

What this means for you as the plaintiff in an accident case, or for that matter, any personal injury case, is that you should be aware of the dangers of out of court statements. After the event takes place, you should:

  1. Keep a cool head. Keep emotions (anger, fear) in check.
  2. Where possible and appropriate, call the police. The results of an immediate investigation can often be crucial.
  3. Get assistance from a doctor if there is the slightest chance of injury.
  4. Hire a personal injury or accident attorney if there is even a possibility of a lawsuit.
  5. Decline to make statements or sign anything unless your lawyer is present.
  6. If police are on the scene, answer questions directly and honestly but only present the objective truth. I.e you can say “the other vehicle was turning from Maple onto Main Street when it struck my vehicle” but not “I may have been going too fast.”

If an insurance company requests a statement, politely but firmly insist that your attorney be present, and refuse to give statements until he or she is available. Make sure you have a competent attorney who can advise you on which questions to answer and how; whether to allow recording devices to be used; whether or not to sign a written statement, and so on. Don’t forget: insurance companies (including your own) make profits by collecting premiums and avoiding payouts as much as possible. If your goal is a large settlement, that’s fine, but remember, that is not what the insurance company wants!

Human beings naturally love to converse, to share information, and to come to agreements. That’s fine in a social setting, but not when a lawsuit may be in the offing during which a large settlement will be at stake. The maxim “silence is golden” is a good one. And remember, too: any statement you would like to make can always be made later; but once you’ve made it, you can clarify or even repudiate it—but you can’t take it back in your mouth.

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