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Should the Personal Injury Client Provide a Statement?

I am often asked by an insurance company if my client will give a statement. This request raises a few intriguing questions. First, is my client obligated to give a statement? If it is a car accident case, the client is obligated to give a statement when seeking so-called first party benefits, i.e. PIP (Personal Injury Protection). The authority for this is contained in the auto insurance policy. It states that in the event a person is seeking payment under any provision of the policy, the insurance company has the right to take an examination under oath. However, if we are dealing with a so-called third party insurer, the client does not have to give a statement. Additionally, there is a right to decline to give a statement in other types of personal injury cases, i.e. non-auto cases.

The above explains a client’s rights and obligations. As a matter of tactics, should the lawyer advise the client to agree to give a statement where it is optional? Usually the answer is no, because you would be giving the opposition the opportunity to question a client prior to litigation, and once litigation begins, the other side will have an automatic right to take the deposition of that party. This will enable the adversary to be educated in ways that would not have been possible if the client had not given the statement before the lawsuit began.

In certain circumstances, I have allowed for clients to give statements before a case is in suit. There are two considerations which guide me. The first is whether the client makes a good appearance and can narrate in a coherent way how the accident occurred. The second principle to keep in mind is the nature of what is asked by the other side. Can it be informal such as merely an interview? If not an interview, will it be a handwritten statement which is then signed by the client? In some limited cases, I might agree to that. In almost no event will I agree to a recorded interview.

Also, if a client hopes for a quick resolution, I may be more inclined to agree to his or her giving a statement. The lawyer must sit down with the client to discuss the best approach given the circumstances. I will ask: are you willing to give the other side two bites of the apple – a statement and then a deposition?

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