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 recently hired Robert Feinberg of Feinberg and Alban. He was professional, knowledgeable, compassionate, reliable and responsive. The results he brought me were truly amazing. I would highly recommend Robert Feinberg to friends and relatives. I ...

    Read more

    Joanie Bell

  • google
    5.0/5.0

    I used the law firm Feinberg and Alban pc to handle a personal injury case for me. I found them to be very honest, ,always reachable, and extremely competent. Robert Feinberg worked very hard for a long time to accomplish a fair settlement. I would ...

    Read more

    jay slobodkin

  • google
    5.0/5.0

    Robert Feinberg is a dedicated attorney who goes above and beyond to help his clients. He is prompt and thorough in his work and always perseveres to get the best results for his clients. I admire and respect his professionalism and work ethic. His k...

    Read more

    Marissa Broverman

  • google
    5.0/5.0

    Robert Feinberg and his team were nothing short of stellar. They were prompt in all communications, insulated me from complications with insurances while I recovered from my injuries, and produced a favorable outcome after all was said and done. Ver...

    Read more

    Nigel Mathes

  • google
    5.0/5.0

    Great communication and follow up. Responsive to my needs and positive result's !

    Read more

    Chris Connor

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form