You may have watched trials on television, or been in a courtroom witnessing a trial, and heard the phrase “that is hearsay.” Hearsay is a statement from a person who is not present during a court proceeding—information a third party may claim to know. It may change what the court or jury knows and could have an impact on a legal case.
While hearsay is mostly found in criminal cases, hearsay exceptions may arise in civil cases. In a personal injury lawsuit, the hearsay rule can affect either the person responsible for the injury or the injured person.
Accident Scenes, the Resulting Chaos and Hearsay
The immediate aftermath of any roadway accident is chaotic at best. Even a minor rear-end collision often means multiple cars are at the scene, people are coming out of stores, and traffic may slow down to observe the scene.
What any party in the accident says may find its way back to an attorney, police officer, or one of the involved persons and may ultimately undermine a victim’s claim.
Here are some of the potential people who may overhear something said by a victim or the culprit following an accident:
- One of the drivers involved in the accident
- Passengers in one of the vehicles
- Eyewitnesses who were at the scene of the accident
- Police officers who came after the accident
- Paramedics or other emergency medical team members who arrived after the scene
- Nearby business owners or their customers
This list is not necessarily comprehensive, but it does give you an idea of how many people could potentially hear or overhear information at the scene of a roadway accident which could aid one side or the other in proving who was at fault for an injury.
This is why you should never say anything to law enforcement, other drivers, passengers, or anyone at the scene of a collision, which may indicate you were partially or fully at fault for an accident when you suffered an injury.
The Accident Scene Is Only the Beginning
Once a victim leaves an accident scene, they may find themselves in situations where they might describe what occurred. Any statement that can substantiate the root cause of the injury is important.
You may find yourself talking to:
- Medical personnel – whether you go to an emergency room or your own physician, the doctor will ask you how you suffered an injury. Use caution: The general cause of your injury—the car accident—and how you discuss it with your medical team could hamper your chances of proving the other driver was at fault.
- Insurance company – when reporting your accident to the insurance company, never give any indication you may have partially caused the accident. Simply state you were in an accident and stick to the facts. Elaborating can cost you—advise them to seek copies of the accident report, or to speak with your attorney if they persist in asking questions.
- Insurance adjusters – working with an insurance claim adjuster can challenge you. Their goal is to reduce the amount of a claim an insurer is going to pay. Your goal is to make sure you get full compensation for your claim. When you describe the accident, never take any responsibility or minimize your injuries. Remember, even simple statements indicating you are feeling well could be used to reduce the amount of your settlement or award.
- Social media statements – in today’s environment, people often post on social media if they are involved in an accident. Innocent statements like, “I’m fine, but my car is a disaster,” can show you were not seriously injured. You can never really delete a statement like this. Someone may have already shared it with someone else.
These are a few situations in which you could hamper your personal injury lawsuit settlement if someone admits a statement as hearsay evidence. Even when you do not make the statement directly to any single person, being overheard could jeopardize your personal injury case.
Personal Injury Cases, Negligence, and Hearsay
To hold someone accountable for the injuries an accident victim sustained, they must prove the other person acted negligently.
This means in broad terms that the person did something that resulted in your injury. However, the court may admit even innocuous statements made to passersby or law enforcement under hearsay exceptions that could damage your case.
Here are some instances in personal injury cases that could involve the hearsay rule:
- Automobile or other roadway accident – when you drive your car, you owe every driver on the road a reasonable duty of care. This means you will not behave in a manner that could potentially cause harm to others who are on the road. Speeding, driving under the influence, and distracted driving are all behaviors that indicate a lack of care for others who are sharing the roadway. Therefore, if you say at an accident scene, “I was on my cell phone and suddenly I was struck from behind,” and someone overheard you, that could diminish your claim.
- Medical, surgical, or prescription injuries – you have a right to expect the highest level of care from a medical or surgical team. When that team could have reasonably foreseen the failure, you may have the basis for a medical malpractice lawsuit if you can show that a team member acted in a manner that was unusual or outside of the normal procedures that any reasonable practitioner would use. You are scheduled for surgery and your doctor informs you that you must stop using an over-the-counter drug for the 10 days leading up to the surgery. You tell your spouse, a friend, or a coworker you have no intention of doing so and something goes wrong—if the medical team can tie the use of this drug back to a bad outcome, then the statement you made to the other person, even when hearsay, can weaken your case.
- Slip and fall accident injuries – you are in a supermarket, and you fall and injure your back. When you are in the emergency room for treatment, you tell the nursing staff about the fall, and you tell the nurse you knew you should not have worn the shoes you were wearing because you found they lacked sufficient traction. This statement could diminish your claim because the person who you believe caused your injuries could claim you knew those shoes could injure you.
As you can see, several situations can ultimately jeopardize your chances of securing a reasonable settlement in a personal injury case, even when you were not at fault. What may seem innocent could ultimately result in you getting far less of a settlement, or no compensation at all, if the court finds hearsay like this admissible in your case.
Protecting Yourself From Hearsay Evidence in Civil Cases
The best thing you can do to protect your rights is to contact a personal injury attorney as quickly as possible after any accident when you suffer an injury. You do not want to do anything that can result in a diminished claim. Unfortunately, what may seem like an innocent enough comment when you make it can come back to haunt you during settlement negotiations.
Some ways you can avoid making a costly mistake include:
- Do not discuss the accident – avoid discussing the particulars of an accident with anyone except your attorney. Doing this helps you avoid potentially costly missteps. When reporting the accident to your insurer, discussing the specifics with a medical team, or reporting to your employer so they know why you will be out of work, keep your statements vague and focus only on the accident.
- Use caution when answering questions – avoid answering questions that may seem innocent enough at the outset. For example, an adjuster may ask, “How are you feeling?” “I’m good” or “Great” are common answers, but they could potentially cause you problems by making you sound uninjured or fully recovered.
- Avoid recorded or written statements – do not give a recorded or written statement to an insurance company. Omissions, selective questioning, and other pitfalls could be contained in these statements that could jeopardize your settlement.
You should always tell insurance company adjusters or anyone else who contacts you to speak with your personal injury lawyer after an accident. This is the best way to protect your rights and it helps make sure you will not inadvertently say anything to jeopardize your case.
Facts Matter: Accident Victims Must Matter Too
Every day, hundreds of people suffer injuries on roadways in the United States. On an average day, more than 150 people lose their lives to a traumatic brain injury (TBI), many of them avoidable because they resulted from a car accident. Those who do not lose their lives have a questionable future due to the long-term implications of a TBI.
Financial compensation is never guaranteed in a personal injury case, even when you hire a lawyer who has a track record of successfully obtaining settlements on behalf of their clients.
Everything you do following an accident in which you suffered an injury will come under scrutiny. The more severe your injuries, the higher the likelihood the insurance company will go out of its way to minimize your claim and pay as little as possible.
Remember, they know there are some expenses they will have to reimburse you for, such as medical bills, or lost wages, but they also know if they can find a witness or other person who has information about something you said in the aftermath of an accident, they may pay less, or avoid paying anything at all towards your claim.
You may feel overwhelmed following an accident, which is perfectly normal. It disrupts your entire routine. You are recovering from injuries, your employer has forms for you to fill out, you are likely getting calls from multiple insurance adjusters—all of these things compound the stress you are feeling and are taking your focus away from where it should be: Recovering from your injuries. This is why you must seek legal help immediately following an accident where you suffered an injury due to someone’s negligence.
Hiring the Right Lawyer After Your Accident
After an accident, you are facing some unusual challenges. The uncertainty of how long it will take you to recover, the concern about your finances, the worry about how your injuries are impacting your family. You must meet these challenges, and others, head-on. The best way to handle them is to work with an attorney who will serve as your advocate and help you get the best possible financial outcome.
You want to ask the right questions when you hire a lawyer to handle your case. Make sure when you speak with a personal injury lawyer they know who you have discussed your case with and whether any potential witnesses may share hearsay evidence that could jeopardize your case.
Never assume the insurance company won’t use against you those innocent statements you made to the nurse, your boss, or the insurance adjuster. It will.