Personal Injury Law

Insurance adjusters and the recorded statement.

By Steve Lombardi

Finding those two witnesses shows excellent skills on your part. Well done. After 26 years of practicing law I can think of only two reasons why insurance company adjusters want to talk with the person asking their company for money; and neither reason is good for you.

Issue: I was in a MVA over two weeks ago. I turned left at the same time a truck ran a red light. The police report said nothing about the red light and decided I failed to yield. The insurance company originally denied the claim then fortunately after finding 2 witnesses, they changed their mind. My insurance has determined I was NOT at fault and denied his claim. His insurance will not give me a definitive decision and wants to contact my adjuster. Do they both have to agree on who is at fault.

Action: Unless his insurance company believes you were not at fault for the accident, or bare less fault than their insured, they will continue to deny your claim. Insurance company adjusters are taught to be noncommittal and to suggest they need a little more information before making a decision. This delay tactic is taught to allow them the opportunity to get you to say something damaging to your case. Because even if all the witnesses agree you were not at fault, if you admit fault, then your case is weakened. They have no reason to talk with you except to get you to say something that will allow them to either deny your claim or to pay you less than you deserve. There is no other reason for them to talk to you. Get a lawyer - get representation.

Comment: Very good. Finding those two witnesses shows excellent skills on your part. Well done. But after 26 years of practicing law I can think of only two reasons why insurance company adjusters want to talk with the unrepresented person filing an insurance claim; and neither reason is good for you.

Believe it or not you can decline to give a recorded statement. There is no law that requires you to give the opposition a recorded statement; unless of course you've filed suit. Then you will be required to give a deposition which is a formal statement under oath where you are questioned by an attorney; not an adjuster.

Also there is nothing wrong with refusing to give a recorded statement to the opposing adjuster. If your lawyer says to do it then do it, but while unrepresented it is perfectly fine to decline such an invitation by the adjuster for the other guy's insurance company. Simply say that until you are represented you would rather not give a recorded statement. If the adjuster insists or implies that by refusing to do so you are admitting fault or acting suspicious, then you have your marching orders to hire a lawyer.

Many people believe being honest is the best policy and so when pressed they will accept the insurance adjuster's firm offer (demand) to submit to a recorded statement, because to do otherwise may appear dishonest. This is a trick they are taught. Honesty has nothing to do with declining this invitation until you are represented and have an opportunity to be prepared by a lawyer to do it in a way that doesn't prejudice your claim. People use words in lay conversation that if used in legal contexts have a completely different meaning. A professional adjuster knows how and when to cut you off from explaining what you've just said on the recording, allowing him to create a false impression that you did not explain something you said, therefore the false impression must be true. Until a lay person understands how false impressions can be created through the questioning by highly skilled and trained insurance adjusters, they are at a decided disadvantage. And remember, once you give a false impression because you used the wrong words or failed to take control of the process and explain what you meant, a later explanation will always ring hollow. The quote below is from the blawg site for Miller & Zois, and it points out the problem with how a recorded statement can later be used against you. Controlling the context is so very important when understanding why something was said as a fact. Defense lawyers can be highly skilled at taking things out of context to create a false impression.

Defense attorneys use recorded statements to parse sound bites out of context, often giving ample fodder for cross-examination against your personal injury client at trial.

So my advice is simple, turn down the offer that is coming to allow a recorded statement and get a lawyer. And it should be a lawyer familiar with the process who knows how to teach you to understand the pitfalls of the process. I'll write more on the need to give a recorded statement to your own insurance company and why that may create a need for you to obtain representation early on in the process.

Know your rights, be vigilant about protecting them and act honestly but not out of ignorance.

Full post as published by Des Moines Personal Injury Lawyer on March 27, 2008 (boomark / email).