Search Site
Menu
What Do We Look For After an Accident?

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    I had a wonderful experience working with Robert Feinberg and Colleen Santoro. I never once had doubts about how my case would be handled. I knew I was in great hands with both of them. I was always informed and felt confident in their ability to re...

    Read more

    Betsy Rose

  • google
    5.0/5.0

    This firm is great! They negotiated a settlement for us after another firm told us we had no case. The whole process was quick and easy. Colleen was so easy to work with and very responsive.

    Read more

    Ellen Carita

  • google
    5.0/5.0

    Highly recommend this firm! Colleen Santora was my sister's attorney for her motor vehicle accident. Colleen was always responsive and answered all our questions. She was transparent and put 100 effort in the case. She very knowledgeable. I would re...

    Read more

    Warda Khurram

  • google
    5.0/5.0

    My wife with our dog crossed the street when was hit by a car. Our attorney Alexis Cahill was professional, knowledgeable and reliable. We had good communications with her all the time while my wife recovered from her injuries. We are completely sati...

    Read more

    michaelvideohere

  • google
    5.0/5.0

    I got chance make car accident (it's not my fault). Before I didn't have any accident like that one. I choose this agency accidentally due to it's location was convenient to my job. I was surprise (good surprise) that agency lawyer (Colleen Santora) ...

    Read more

    Anatoly Gorbatchev

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form