By Attorney James Ballidis
Senior Litigation Attorney
(2/2/2006)

Recorded statements can be the greatest help, or greatest hindrance, to an auto accident case. Attorneys in our office always want to talk to an auto accident witness, before obtaining a recorded statement of that witness. It is even preferred that we obtain a written statement, instead of a recorded one. Let me explain why that is true.

A recorded statement, if properly authenticated, is admissible in Los Angeles and Orange County courts, and throughout the State of California. If the witness says things that are helpful to the case, or auto accident theme, obviously the recorded statement is quite helpful. However, if the recorded statement is taken before you know what the witness is going to say, the witness may say things that are inaccurate, harmful, or untrue. The witness may say things that are inconsistent with the other witnesses, or impossible. See Keeping a Witness from Ruining Your Case. The auto accident witness may testify on the basis of bias. See Witness Bias. Witnesses are also understandably nervous when a recording is turned on. They must be told the statement is being recorded, and sometimes this acts as a hindrance to free conversation.

The preferable way our office has employed, over the thousands of Auto accident cases we have handled Track record, is to have a frank and open conversation with the witness about their observations. The investigating attorney should be versed in all aspects of the case, including the expected testimony, before making the call. See the excellent link Interviewing an Auto Accident Witness for tips on how to prepare, before calling the auto accident witness.

Frequently the witness will say things that may seem odd, or inconsistent with the way the investigating attorney understands the auto accident to have occurred. By allowing for the free flow of information in an interview, the personal injury lawyer is then able to effectively discuss the inconsistencies. Sometimes, the witness will explain the issue away, sometimes, they will realize that some of what they are saying is just an impression, and they really did not see or hear all that they just conveyed.

The witness will thank the investigating attorney if that witness is saved from embarrassing moments of cross-examination showing that they could not have seen or heard what they were testifying to.

As an example, in one large personal injury auto accident case handled by our office, a witness passed our client in the lane to the left. Our client was stopped in the right lane, for traffic turning into a shopping mall. Our client was then rearended by another car behind the witness. The witness said that she saw the actual impact to our client's car in her rear view mirror, after she passed our client. However, accident reconstruction showed a curve in the road, discounting her ability to actually see the impact. The case involved a rear end accident, and there was no true liability issue. However, the speed of the offending car was important just before impact, to document the severe injuries that occurred. Since the offending car had been behind the witness at 45 MPH for 2 or 3 blocks, her testimony was important to the nature and severity of the impact. If she were to testify to an impossible viewing of the accident, through her rear view mirror, her testimony would be completely discounted by a jury, and she would have been embarrassed by the cross-examination.

After talking with her, she admitted that while she had not seen the actual collision, she could easily surmise what happened from what she saw moments before, and the sounds behind her, and the debris moving in her rear-view mirror. In a recorded statement, it would have looked like this:

Interviewer: What did you see through your rearview mirror:
Witness: I saw the collision to the rear of the car in the right lane

Cross-examination would have been something like this

Attorney for the Bad Guy: You stated that "I saw the collision to the rear of the car", Didn't you?

Witness: I said that yes.

Attorney for the Bad Guy: Well, the truth is that you could not see the backside of that car, when the collision occurred, isn't that right?

Witness: Well, I guess I could not see the back of the car, but I know they hit each other.

Attorney for the Bad Guy: Well, under penalty of perjury you said something that was not true didn't you?

Witness: I guess I did.

She had actually not seen the accident, as she thought, in her rear view mirror, but clearly had heard it. She had just past the car eventually rearended, she visualized what had happened. She was an excellent witness, and thanked us for noting that she did not need to say she saw the accident, to gain the impression of the collision. Our case went on to a sizable verdict. Had a recorded statement been taken, and used at trial, she would not have made the favorable impression we had hoped.

Statements in written form are also preferred. After the interview, a fair and accurate rendition of the statement can be prepared, and read over the phone to the witness. The witness can ask for changes, and before signing the statement, can make changes on the document. This increases the comfort of the witness and also gives them something to hang on to, if they need to testify again. Many witnesses will review the statement later, when asked to testify, and will therefore not tend to change their version, strengthening their testimony. A recorded statement is hard to transcribe accurately and read.

To win your case, our office always discusses the details with a witness first, and never places the witness in a position where their help will be nullified. Even an adverse witness is more favorable, if you have had a chance to interview them first. While they may have impressions and conclusions that are not consistent with our client, many times, they will give facts that actually support our client's version of events. While an insurance company will record statements, we have found the far superior method is actual hands on work to win your case.

We would be happy to talk to you about your case. Contact Us online or call us at 1-888-752-7474. James Ballidis has been practicing with the firm for 20 years and is the senior auto accident and personal injury litigation specialist. In 2005 Mr. Ballidis obtained a 2.8 Million dollar verdict for an injured victim, and has had numerous other successes, many of them listed in (Our Track Record).