Do I have your permission to record this? Taking an effective recorded statement of an injured worker.
Benefits Determine if claim is compensable Event is still fresh in worker s mind Evaluate subrogation potential early
Four Key Points to Remember Statement will be cemented as the truth Statement may be highly inaccurate Statement is discoverable and admissible Subrogation case will rise or fall based on the statement
Cementing the Worker s Story Rightly or wrongly, the jury will believe the worker s statement over everything else, because: Worker gives statement when facts are fresh in his mind Worker has not yet lawyered up Worker has no motive to lie (yet) Audio evidence can lead to trouble
Why the worker s statement may be inaccurate Embarrassed / takes blame Does not have all the facts Worried about getting employer in trouble Speculation and guesswork
Why the worker s statement may be inaccurate Distractions while giving statement Poor cell phone reception / miscommunication Animosity against insurance company Doesn t understand legal terms ( defect or fault )
Discoverability of Statements
Discoverability A party may obtain discovery regarding any nonprivileged matter that is relevant to any party s claim or defense Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence FRCP 26(b)(1)
Privileges Federal Courts Attorney Client Privilege Includes preliminary discussions with potential clients Work Product Privilege Facts known or opinions held by a non testifying expert or one specially retained in anticipation of litigation unless exceptional circumstances exist ordinary work product raw factual information is presumed non discoverable (recorded statement) opinion work product mental impressions, opinions, conclusions enjoys absolute immunity
Privileges Pa. State Court Privileged Information: Attorneys: Mental impressions, opinions, NOTES and summaries Non Attorneys: Mental impressions, conclusions or opinions regarding the value or merit of a claim Pa.R.C.P. 4003.3
Admissibility of Statements
Admissibility Definition of Hearsay A statement other than one made while testifying at trial offered in evidence to prove the truth of the matter asserted FRE 801(a).
Admissibility Exceptions to Hearsay Rule (at least 29 exceptions) Admission by party opponent i.e., the Plaintiff s statements may be used against him for any reason by the defendant, but the plaintiff may not use it on his own behalf. FRE 801(d)(2)
Admissibility More Exceptions to Hearsay Rule (at least 29 exceptions) FRE 801(d)(1) Prior statements of a witness FRE 803(5) Recorded recollection FRE 804(3) Statement against interest FRE 801 Anything else offered for a reason other than to prove the truth of the matter asserted (i.e., knowledge on the declarant s behalf)
Tips and strategy for taking a recorded statement
Tips Give instructions to the employee before starting: Don t guess or speculate I don t know is an acceptable answer If you don t understand the question, tell me so Only answer the question I ask Don t volunteer any information
Tips Just the Facts Don t ask witness for his opinions on anything. Stick to the Four W s who, what, when, where, why Pre interview the employee Write key questions down before hand Consider retaining counsel to cloak with a privilege Note that the statement is being taken in anticipation of litigation
Tips Avoid compound questions. Only ask one question at a time Wait at least 20 30 seconds for responses. Silence is acceptable Allow interviewee time to think about the question and the response Ask clearly worded questions and speak clearly when you ask them Rephrase a question only after the wait time Don't answer your own questions Use background questions to establish rapport Don't interrupt the interviewee
Safe Questions / Dangerous Questions
Safe Questions Are you currently on any medication that might affect your ability to remember details or otherwise give accurate information? Not including your employer, did anyone take responsibility for causing your accident? Did the [target] make any admissions or statements to you? Has something like this happened before to other people?
Safe Questions Identify all witnesses, including those that came over to help you after the accident. Who should I talk to to find out more about your accident? Did anyone investigate? Did anyone take photographs?
Dangerous Questions Why? In your opinion,? Was the machine defective? Whose fault was it?
Dangerous Questions Did you see the crack / ice / banana peel before you fell? What caused you to fall? How fast was the other car going? Did you know about the hazard before the accident happened? Did someone tell you not to do that?
Product Liability Questions Aware of any other accidents involving this product or similar products? Are there machines that do the same thing that are designed differently, so that this kind of accident can t happen? Manufacturer, model, serial number, and any other identifying information? Name of retailer, distributor, and anyone else who was involved in the chain of sale?
Product Liability Questions Name of any company that has serviced or inspected the product? Has the product been used since your accident? Where is it? Who purchased the product? Who owns it? Who can I talk to to learn more about this product?
Fall Down Case Questions Who owns the property? Who manages the property? Who maintains the property? Have you heard of others suffering similar accidents? Did the property owner / manager say anything to you after the accident?
Construction Accident Questions Names of all contractors on site? Who was on site foreman? Who did your employer have a contract with?
Should you take a recorded statement?
Alternatives to taking a recorded statement
Alternatives Interview the witness without recording it; take notes of the conversation still discoverable, but does not bind the injured worker as much, and may not be admissible
Alternatives Let counsel interview the witness.
Alternatives Don t do it at all.