PERSONAL INJURY WITNESS STATEMENTS
OPTIONS FOR WITNESS STATEMENTS IN PERSONAL INJURY INVESTIGATIONS
By Bruce Robertson, Private Investigator
Personal Injury Investigations: What You Don’t know Can Hurt You
Witness statements in personal injury investigations can make or break your case. Even if the police report assigns liability to the defendant this is no guarantee of success. Personal injury witness statements are often the crucial glue that holds your case together. And contrary to the popular saying, what you don’t know can hurt you… many seemingly great cases have been sunk because key witnesses were unreliable or discredited unbeknownst to the attorney.
Recorded vs. Written Personal Injury Witness Statements
If you have an average auto vs. auto personal injury investigation and you want to obtain the most cost effective witness statement, having an investigator take a telephonic statement can be adequate. The investigator calls the witness on the phone, informs them that they are going to be recording their statement and then conducts an interview with the witness.
The downside of this type of statement in personal injury investigations is that if the witness is not favorable, or has both favorable and unfavorable information in regard to your liability; the statement becomes a piece of evidence which may be discoverable at a future date. If you are depending on the statement to determine if you want keep the case or not you may not have a problem with receiving a negative statement. You can then show the statement to your client and explain to them why you will not be able to pursue the case. On the other hand, if you keep the case, you may have an unhelpful statement which the defense can discover at some point in the future.
It is important to obtain personal injury witness statements from witnesses even if they claim not to remember the accident. This precludes the opposing party from working them over and presenting them up as a favorable witness for them in the future.
Taking a Recorded Personal Injury Witness Statement
It is important to obtain witness statements early on in the case. When hiring a private Investigator to conduct your personal injury investigation there are essentially three options available; a recorded witness statement, a written and signed witness statement or an informal witness interview where no statement is taken. There are different circumstances which predicate which option is most appropriate.
The Written Personal Injury Witness Statements
If your case has more than average value or disputed liability, it is advisable to have the witness interviewed in person by a qualified investigator. The investigator will contact the witness and make arrangements to meet with them at the witness’ convenience.
In most personal injury investigations the investigator should start the interview by finding out what the witness saw and how their memory of the accident affects liability. The investigator will often draw a diagram of the intersection scene in a traffic accident and perhaps use paper clips to represent various vehicles. They should find out everything the witness has to say concerning liability before proceeding with a written statement.
In a personal injury investigation the advantage of the in-person interview is that before preparing the declaration, the investigator can determine what factors are favorable and which are not. In the preparation of the statement, the investigator can emphasize the favorable factors and minimize negative factors.
The personal injury witness statement should be written by the investigator in the first person of the witness starting with “I (name of witness), declare as follows:” and conclude with the following paragraph, “I declare under penalty of perjury that the above statement by me is true and correct to the best of my knowledge, that I have personal knowledge thereof and that this declaration is executed on (date) in (city), (State)”, and the signature of the witness. The investigator should make at least one change in the document and have the witness initial that change to prove that the witness actually read and understood the statement.
Sometimes the volume or complex nature of information the witness has to offer makes the written personal injury witness statement preclusive. As an alternative at this time an in- person recorded statement can be taken. The in-person recorded statement provides extensive details for the attorney in cases where extemporaneous details and state of mind are important. An example of this would be in a case where there are multiple vehicles involved in a complicated freeway accident, or a third party work related accident where details surrounding the situation are important.
The Written Personal Injury Witness Statements
In some cases, especially with major personal injury cases, you may instruct your investigator beforehand not to take a statement if the witness is unfavorable. This will prevent a formal statement which is harmful to your case from being discovered by the defense in the future. In such cases, once the investigator has established in the interview the witness is negative towards liability, the investigator only conducts an “informal interview” and submits a report to the attorney that is covered by work product privilege. In this case there is no negative statement to discover.
The Personal Injury Investigation Impeachment Statement
There may be cases where a witness is clearly biased against your client. In such cases the witness may be so anxious to help the other party that they make unreasonable or illogical statements that can be used to assail their own credibility. If you have such an adverse witness, it can be advantageous to have an investigator take a recorded statement from them. In it the investigator will allow the witness to exaggerate the facts to whatever degree they wish in order to lock them into bogus facts and details that can be used in the future to impeach their credibility.