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Giving a Recorded Statement - Sounds Simple Enough . . . or is it?

You’ve been in an automobile accident and it wasn’t your fault. Soon afterwards, an adjuster for the negligent driver’s insurance company gives you a call. You see the insurance company’s name on your Caller ID and you take the call. What could go wrong? Their driver was clearly at fault. The police officer gave the other driver a ticket for causing the accident. Your car is inoperable, you’re hurt and have missed time from work and you need help. What could go wrong?

Catching More Flies with Honey a/k/a “The Polite Adjuster”

The adjuster politely introduces herself and says right off that, “she wants to help you.” She wants to do everything she can to make the situation “right.” She’s very likeable on the phone and will even make small talk with you - it’s part of her basic training. Insurance companies have learned and implemented the teachings of the old adage: “you will catch more flies with honey than with vinegar.” After telling you everything that she can do for you, she then says something to the effect, “‘so I can get the checks ordered’ or ‘in order to complete my investigation,’ I’ll need to take a recorded statement from you.” You don’t see any harm in giving a recorded statement, especially if it will help her get her investigation done more quickly (and get the checks to you sooner). She’s been very forthright with you and you want to help her get her investigation done. Again, what could go wrong?

You should not give a recorded statement concerning any accident to anyone without consulting an attorney first. That’s not to say you won’t ever give a statement, it just means you need to talk with an attorney first. Most personal injury attorneys offer free initial consultations. Franklin & Franklin will communicate with you in person, over the phone, via email or by text. You can reach our attorneys via phone 24 hours a day at (757) 316-8888. Take the time to ask an experienced personal injury attorney, should I give a recorded statement? They might be able to give you some pointers and traps to avoid based on the facts of your case.

Ask yourself: “Why does the adjuster, who is so willing to ‘help me,’ need to take my statement?”

Take a moment to think about that question. Haven’t they already spoken with their driver? Haven’t they also spoken with the police officer? Don’t they already know their driver got a ticket for the accident? The answer is simple, they represent their driver and only their driver. The insurance adjuster’s sole objective is to pay as little as possible to resolve the accident claim. If that means getting answers in a recorded statement from the injured person that let them off-the-hook, then the adjuster has done her job. Most injury and property claims adjusters are given bonuses or incentives by paying out less in claims. That could mean you!

What are some of the pitfalls of giving a recorded statement?

  • Adjusters take recorded statements from as many witnesses as possible. They follow a standard list of questions for each witness. The adjuster then takes all of the witness statements and looks for inconsistencies in the statements. Adjusters take statements all day long, every day. That’s their job. This places you at a great disadvantage since it’s likely you may have never given a recorded statement before.

  • The adjuster’s standard list of questions has a number of innocent-sounding questions. These innocuous questions usually come sometime after the “easy” questions have been answered. These questions do not normally involve a “tell me how” the accident happened question. Rather, the questions focus on singular facts like: your speed before the accident, what color was your traffic light, when did you first see the negligent driver, when did you first see the other driver, when did you realize there was going to be an accident, were your brake lights in working order, whether you were wearing your seatbelt and various others.

  • The adjuster will also allow you to answer important questions like “describe how it happened” and not ask any follow-up questions if you have given a vague or incomplete response. Why would they want to give you a chance to improve your answer? The converse is not true. If you give a detailed answer that hurts their case, the adjuster may spend more time asking questions about your ability to recall the accident and the damaging details. She might get you to talk about “how fast everything happened” or whether the airbag had deployed and caused you to be “shaken up” following the accident. You might agree with the adjuster when she talks about your being stunned or disoriented following the accident. If you are certain in your answers and descriptions, don’t waiver. Don’t let the adjuster define the facts or your narrative. Don’t ever answer with, “I guess so.”

Conclusion - Know Your Rights

Remember that you may have to give your recollection of the accident multiple times over the pendency of your case. Your ability to recall the facts in a consistent manner will be a test throughout the case. Adjusters and insurance company lawyers look for inconsistencies and use those against you. While Miranda rights don’t apply to civil cases, a Miranda-style warning is still instructive in a civil case and should be your guide to giving any recorded statements without seeking advice of counsel first.

Anything You Say Can and Will Be Used Against You [by the Insurance Company in Your Case].
— Miranda v. Arizona, United States Supreme Court (modified)

In all cases, if you give a recorded statement to an insurance company adjuster prior to hiring an attorney, you should ask for a copy of your statement. Virginia Code §8.01-417(A) says that the insurance company must provide a copy to the injured person or his attorney within thirty (30) days.

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Rhett B. Franklin, Esq.

About Rhett B. Franklin, Esq.

Rhett is celebrating his 25th year in the practice of law. He has worked as a personal injury, auto accident and workers’ compensation trial attorney, an adjunct professor and law lecturer. He enjoys working on interesting theories of liability and is dedicated to working to achieve the best results for his clients against insurance companies.

helpful links on Recorded Statements in Personal Injury Cases

§8.01-417 of the Code of Virginia of 1950, as amended.

§8.01-404 of the Code of Virginia of 1950, as amended prohibiting use of ex parte written statements in a personal injury case to contradict a witness.

Miranda v. Arizona, 384 U.S. 436 (1966)

Ruhlin v. Samaan, 282 Va. 371, 718 S.E.2d 447 (2011)(court allowed insurance defense lawyer to use plaintiff’s recorded statement taken by insurance adjuster to refresh his recollection at trial).