In a recent video blog, Defense attorney John Johnson spoke of important factors that he uses to assess a case. He explicitly mentioned that statements made soon after an accident or to a medical provider are very relevant to his determination of liability. As a plaintiff’s attorney, I want to point out that this can go either way: statements of the defendant at an accident scene are also very probative and for the same reasons.
Why are these statements given such emphasis? As this video blog discusses, statements that are closest in time to an accident– such as those to a first responder or to a medical provider– are excepted from the hearsay rule. They are made by a party to the action and therefore can be introduced by the adversary as an admission of a party opponent. (Note that you cannot introduce statements of your own client unless within another exception to the hearsay rule. This concept has sometimes eluded even experienced litigators, to my surprise.) Their exception derives, in part, from the notion that such statements have reliability– the term we often hear is “indicia of reliability”. Statements made before one has an opportunity to reflect are deemed honest perceptions. The person has not had time to consider the legal implications and, in the modern vernacular, has not been “lawyered up”. Consequently, there won’t be a nuanced or parsed description. An additional benefit of such statements is that the speaker’s memory is sharp. In contrast, depositions and certainly trials, are often years later. At that time, memories aren’t so fresh. Such statements are not only exceptions to the hearsay rule but they also have persuasive value to the people who assess these cases.
With respect to statements in hospital records, there is a caveat that deserves mentioning. For that, please review M.G.L. c. 233, s. 79 and the case of Bouchie v. Murray, 376 Mass. 524 (1978). The operative language is that “nothing therein contained [referencing medical records] shall be admissible as evidence which has reference to the question of liability.” Without getting into an overly detailed analysis of hearsay, if the statement is made by the party and reflects on liability, rest assured it will have a significant effect on settlement value, the language of the statute notwithstanding. As a cautionary note, however, it is important to learn whether the statement is actually from the party as opposed to containing multiple levels of hearsay.
I cannot emphasize enough how important these statements are. Believe me, it is much better to be able to use a statement of the adverse party that reflects poorly on that party than to be confronted with your own client’s adverse statement. Such remarks go a long way toward determining the outcome of a case.
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