If you've been involved in an auto collision, the other driver's insurance company is likely going to contact you by phone within the first several days afterwards. They will likely seem quite pleasant and concerned for your well-being, especially if it's pretty clear their insured was at fault for causing the collision. The adjuster will probably want to take a statement from you about the collision and your injuries, and they'll want to record it. What do you tell them?
Some lawyers will tell you to “just say no” to a recorded statement. This impulse is well-founded, although I'm not convinced it should be an absolute rule. There are definitely risks to giving a recorded statement early on, before you've had the chance to seek legal advice. Things can go wrong. Namely, you can say something that can be used against you later on to diminish or defeat your claim.
Why, you may ask, would it be a problem if all I'm doing is telling them the truth? I wholeheartedly agree that telling the truth is the right thing to do, and I always tell my clients to be truthful about all aspects of their case, with me and everyone else that have to speak to about it. But often even the most earnest attempts to tell the story truthfully go awry because of communication issues.
The early days after an accident can be chaotic. People are flustered. They are often stressed out, in pain, or both. Sometimes they are under the influence of pain medications that negatively impact their recall and communication abilities. Some people, under the best of circumstances, just don't express themselves very clearly.
No matter how nice the adjuster for the other driver's insurer may seem on the phone, their interests are opposed to yours. It is not their job nor in their employer's interests to help you recount an accurate picture of what has gone on. Unclarified ambiguities, erroneous slips of the tongue, or omissions in the statement can and likely will be used against the injured party later. These are all reasons why it's usually the safest bet to decline to give a statement in the early days after a collision. It's always a good idea to consult with a lawyer before speaking with the insurer- our firm will do that for you at no charge.
The flip side is that (especially when you're not seeking to hire a lawyer right away) the other driver's insurer does have a legitimate interest in hearing your side of the story. They may be, right or wrong, suspicious of why you'd not be willing to tell them what happened. And they are certainly not going to provide you with payments you may be entitled to until they have a clear picture of things. When people are going to give statements to the other driver's insurer, these are the tips I want them to keep in mind:
- Tell the truth.
- Don't give the statement while your ability to remember things and communicate is compromised by pain, stress, or medication use.
- Spend some time thinking about how the collision occurred and practice explaining it to someone you trust. Have them give you feedback about whether your description makes sense and accurately conveys what you're trying to. You need to make sure you have the details clear in your mind before explaining it to an adjuster.
- Make notes to use on the phone if you need to, but don't read them a script when the time comes.
- If a police report is available, try to get it and read it before talking to the adjuster. That way you'll know if there are any inaccuracies in it and you'll be prepared to address them if the adjuster brings them up.
- Don't be a stoic. That is a fine quality, but this is not the time to tell the adjuster that, even though you're in tremendous pain and having lots of difficulties, “everything is ok”, I'm sure I'll be fine soon”, or the like. Usually when the adjuster wants to talk, it's too early to know whether you'll have a complete recovery, and if so, when that will be. Don't try and forecast that. Just tell them what is going on with your body and mind because of the accident, up to that point.
- Don't make any commitments about how much and what kind of treatment you think you'll need. Just tell them who you've seen, who you have appointments scheduled with currently, and that you're going to continue to follow your providers' advice and seek all treatment that is necessary to try and get you better.
- Be succinct. Don't ramble or try and tell them everything anyone may ever possibly want to know about the whole situation in response to fairly simple questions. Answer the questions they ask, and make sure you get to tell them the truly important things. The rest can be filled in later, if necessary.
- Be truthful, but not expansive, about prior health conditions. The adjuster will likely ask if you've ever had prior issues with the parts of your body you hurt in the collision. If your back is injured in the collision, and you had a back surgery a few years ago, it's going to look bad for you later if you say no. The truth may be that you've had a bad back, maybe even had surgery before, but “it was doing (fill in the bank with the truth) until this collision happened. Now it's doing ____________.” The answer could be as simple as “not since ___________ (year you last had the issue).” This goes for any part of the body or medical condition.
To summarize, talk to a lawyer before you give a recorded statement. If you're going to hire a lawyer, don't give the statement beforehand, and let your lawyer decide whether it makes sense to make you available for a statement when he or she can be present. If you're going to give a statement without hiring a lawyer, follow the advice above.