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The Power of a Recorded Statement

There is something powerful about a recorded statement.  President Richard Nixon, Washington Mayor Marion Barry, House Speaker Newt Gingrich, Pentagon employee Linda Tripp, Illinois Governor Rod Blagojevich, and lawyer and fixer Michael Cohen are all notorious names associated with secret recordings.  Politics has taught us that recording people can help us catch the dirt, and modern technology has made recording easier than ever.

In defense and claims work, recorded statements are often used early in claims to capture a potential claimant’s version of events, record any specific details in the speaker’s own voice, and verify any injuries or damages. (Recorded statements are also helpful in workers’ compensation claims, but we will attack that beast another day.)  The benefit of a good recorded statement, however, is finding the balance between sticking to the script just enough to get the pertinent details, while going off book in the appropriate areas to find out the juicy bits or the information that could help you in the future.  A recorded statement can lock in details that can later be used to impeach a claimant, should suit be filed.  It can be used to assess and evaluate a liability claim.  It can be used to determine if a claimant is a good witness or how credible they might be.  It can be used to compare with 911 calls, deposition transcripts, or written statements provided to police.  In short, they are valuable tools if captured properly and skillfully.

In defense and claims work, it is generally not recommended to record your own driver or employee (again, we will discuss workers’ compensation scenarios in a subsequent article).  But when it comes to potential claimants, the more detail, the better.  If you don’t have an office phone that can record a statement, a combination of speaker phone and an iPhone or iPad voice memo app works in a perfectly acceptable fashion.

The best recorded statements contain the following elements once the recorder is switched on:

1. Introduction by name and company.  Make sure you clearly identify yourself.  – “My name is Amy Tracy.  I’m an attorney at Setliff Law.  I understand you were involved in a motor vehicle accident on November 30, 2020.  I represent the other party involved in that accident.” 

2. Description of what you are doing and a request for permission.  – “Would it be ok if I took your recorded statement related to the events of November 30, 2020 and ask you some questions? Do I have your permission to record this phone call?” Make sure to get a verbal response.  

3. Once permission is granted, detail the date and time.   This helps with admissibility and setting the date if the statement is needed in any later court proceedings. – “Today’s date is December 1, 2020, the time is 10:00 a.m.”

4. Ask the 5 w’s and h. — “Who, what, where, when, why, how?” Always get a full name, address, telephone number, and email.  It is often helpful to find out who else lives with them and where they are employed.

5. Always ask if they were injured. — “Where you injured in this accident?

6. Don’t be afraid of the follow up question.  Go off script.  Pretend you are having lunch with a friend and you are interested in what they have to say. Find out what you want to know. Be curious.  – “Have you ever hurt that part of your body before?” “Did you get a ticket?” “Where were you going that you were driving on that road?” “Why were you driving there at 1 a.m.?” “Who was in your car?” “Where do you work?” “Did you car have any pre-existing damage to it?” “Had you taken any medication that day?” “Were you on your phone?” “Did you talk to anyone at the scene?” “Were there any witnesses?”

7. If they say something odd, don’t just let it go.  Ask more questions. – “What do you mean by that?” 

8. Be friendly.  People talk more and provide more unsolicited details to friendly people – “Good afternoon.  Thanks so much for giving me a few moments of your time.  Oh my goodness! That must have been scary for you!” 

9. Always offer them the opportunity to say more. – “Is there anything else you would like to add that I haven’t asked you?”

10. If they say something else that triggers more questions, ask them! – “What do you mean by that?” “Wait, I thought you said you only hurt your neck? When did your head start hurting?” “So did you go to the hospital that night or three weeks later? I got confused.”

11. When the statement has come to a close, conclude the recording. – “This now concludes the recorded statement of Claimant.  It is December 1, 2020, the time is now 10:45 a.m.”

12. As you wrap up the call, the claimant will want some direction of what is going to happen next.  If you are a representative of a company, do NOT apologize or give any details about your driver or the claim.  Simply say, “Thank you for this information.  We will be continuing our investigation.

Sometimes, an individual will advise they will be happy to talk to you, but they do not want their statement recorded.  In this situation, it is recommended to take copious notes.  Ask all the same questions.  At the end of the interview, ask for an email address.  Following the call, type a summary of the call and email it to them.  In the email, thank them for the opportunity to talk and for providing details regarding the claim.  You can also add “As we discussed in our call …” and then detail everything that was discussed.  Sending this email gives them the opportunity to dispute anything that was inaccurate, or it later provides a memorialization of the call.

You may be tempted to record a call without permission.  Many states, such as Virginia and Arkansas, are one party consent states for recording calls.  While it may be technically legal to secretly record a claimant, the better rule of thumb is to handle this type of recording with transparency.  Recorded statements will assist in rounding out your claim investigation and a well-thought out and executed “script” will assist in knowing what type of claimant and claim you are actually dealing with.

For questions or comments regarding recorded statements or examinations under oath, please feel free to contact Amy Tracy (atracy@setlifflaw.com) at 804-377-1264 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

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