Five Reasons Not To Make Statements
Over the years I have been amazed how often future clients have given recorded statements, made statements at the scene of an accident, or have made statements of other types that wind up putting them in jeopardy or in harm’s way.
Here are a number of situations where clients have hurt themselves and possibly lost their case because of what they said in a recorded statement, in a statement to police, or in statements to potential witnesses.
1. If you are in an automobile accident and the police ask you what occurred, you will most likely have to say something. The simpler your statement is, the better.
For example, if someone has rear-ended your vehicle, say that the other vehicle rear-ended you. Don't go into why that person rear-ended you because you may find out later your impression is not correct. If you state an impression that is found to be incorrect, then you have hurt your credibility and brought into question your observation abilities and reliability. If someone failed to yield the right-of-way, just say that your vehicle was hit either on the left or right side. In a second example, let's assume that you've been pulled over by a police officer who asks you why you did some wrongful act such as failing to come to a full and complete stop in front of a stop sign, driving in excess of the posted speed limit, or crossing a yellow line when driving erratically. Although you feel compelled to respond to the officer or feel that you can talk your way out of the citation, it is best not to say anything. The main reason to keep silent is that the officer may not be able to prove your alleged violation. If you admit committing the violation, your will hurt your case because the officer may have kept notes of what you stated at the stop. He/She may then come to court and say that the defendant (you) admitted committing the violation. Your admission eliminates the need for the officer to prove your violation. This happens more often than one would think.
2. If the police interview you after an accident, they will ask you if you are injured. Typically, most people at the scene of an accident are upset and anxious and so their adrenaline is running high. Often it is difficult to determine, with these other forces at play, whether or not you are injured. Tell the police officer that you would like to sit down to collect your thoughts and to get in touch with your feelings. It will not hurt the case if you spend five or more minutes getting in touch with your feelings enough to determine if you have pain. If you are experiencing pain, it is important that you say so. Do not indicate that you are “OK” or that you have no pain when, in fact, you do. You do not have to express to the officer where the pain is. (If an ambulance arrives however, you will be asked to identify the location of the pain and its intensity level.) Understand that sometimes it takes a day or more for the pain to be recognized. So, even if you say at the scene that you are not injured but within 24 hours of the accident you recognize the pain, it is not too late to report it. Harm can be done to your case, however, if you are experiencing pain at the accident scene and don’t express it.
3. Never give a recorded statement to an insurance company representative. The representative will act as though if you cooperate, he/she will respond to your needs including arranging to have your vehicle repaired, obtaining medical treatment for you, or responding to your other related needs. The insurance company’s objective is to gather information from you that will harm your case. Their representative’s questions about how the accident occurred do not seem unreasonable to you, particularly because you believe that the other person who hit your vehicle is the party at fault. Actually, the insurance company’s representative is seeking to obtain from you what we call in the law "admissions against interest". You may believe that your responses are what is needed however you may be harming your case without realizing it. You need to contact an attorney and we can assist you by talking to the insurance company’s representative and protecting your interests.
4. Social Media. Another problem that clients face is what they write on their website or social media. Here are examples of statements made by clients: “The other guy who is at fault caused the injuries and I'm going to get every penny I can from him”; “My lawyer told me I had a really good case and will be able to get a lot of money”; “I have been told that if you have a lot of medical bills your case is worth a lot more”. Statements such as these and others placed in your social media can be presented at trial and negatively affect the jury’s opinion of you, the injured party.
5. Emails can be a problem too. Many of my clients did not know or had forgotten that they signed an agreement with their employer that every email sent on company e-mail belonged to the employer. The attorney-client privilege protects clients with regard to communications that occur solely between the attorney and client. However if the communication is viewed by a third-party, the attorney-client privilege is waived. An e-mail sent from the client to his or her attorney on the client’s employer’s e-mail breaches the attorney-client privilege because the record is a communication owned by the employer and results in a third party communication.
E-mails are discoverable with a few exceptions. In litigation each party has the right to discover facts and issues that arise during the litigation. E-mails between parties are typical examples of information that will be sought by each party through what is called the discovery process. The Maryland Rules permit a party to subpoena records and persons to trial and to depositions. The subpoena is likened to a court order that compels persons such as witnesses, employers, friends, and relatives of parties to attend a recorded interview (the deposition) and to bring documents. Therefore, if you anticipate your case will be litigated or that it has the potential for litigation, you need to be careful about which you say in emails. Contacting an attorney as early as possible often will result in your understanding of the legal system so that the kinds of behaviors, mistakes, and actions described above may be prevented. Whether you're in a troubled marriage, having trouble at work with your boss, or concerned that a vendor has not properly performed, contacting an attorney may prevent you from committing mistakes, making admissions, or exhibiting other behaviors that harm you.
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