Sally slipped and fell on the ever problematic banana peel that was dropped on the floor by a little kid having a snack.  Unfortunately for Sally, her wrist is broken and she needs surgery.

When a customer is injured on your property, your checklist of things to do while setting up the claim is bound to include a witness statement.  The witness statement is one of the first documents created after an incident.  For this reason, it is one of the most important documents in any lawsuit or potential lawsuit.

Why is the statement so relevant?  If the statement is taken soon after the incident, chances are there are no lawyers involved yet.  That fact alone makes the statement more reliable because the witness is not viewed as being coached on what to say.  The witness is also expected to have a better memory for the details soon after the incident.

In premises liability claims, there are primarily two types of witness statements.  The first is a hand written statement that is prepared by the actual witness.  In a premises case, this will typically be the injured customer and/or an employee of the store or company.   The second type of statement is recorded.  This type of statement is taken in person or over the phone and usually done by a claims examiner or investigator.

Since witness statements can often make or break a case, every claims examiner should be properly trained to take a statement and every business should ensure that employees are giving/preparing accurate and useful statements.  The following are a few recommendations for what every claims examiner and business should and should not do when taking a witness statement:

THE DO’S

• Get Personal Information – Be sure the statement includes the witness’s name, job title, address, the date of the statement and if it’s written, a signature at the bottom. If the witness is not an employee, also include age, address, phone number (cell and home), email address and occupation.
• Witness Aware Of Recording – If the statement is recorded, the witness should confirm at the beginning and end that he/she is aware it is being recorded and authorizes it to be recorded.
• Only What Witness Knows/Saw – The witness should only document or discuss what was seen with his/her own eyes or what he/she personally knows.
• Use “Quotes” – Whenever possible, use quotes or direct statements to document the witness’ exact words.
• Talk First, Then Record – When taking a recorded statement, always talk to the witness first and ask the most crucial and relevant questions. This allows you to confirm a statement should be taken and it allows the examiner to ask more pointed questions. It will also allow you to stay away from a certain topic area if that information is problematic.
• It’s All In The Details – Be sure to document how the incident took place with as much detail as possible.
• Think Defense – If notice is a potential defense, be sure that any information which could support that defense is included in the statement.
• Preserve Evidence – If the witness took photographs, preserved video, retained evidence or did anything else related to the incident, be sure that information is included in the statement.
• Know The Facts – If you are taking a recorded statement, be sure you have basic facts about the incident and the potential liability issues before taking the statement so the proper questions can be asked.

THE DONT’S

• No Guessing Allowed – Do not include any speculation or guesses in the statement, only pure facts.
• No Opinions Needed – Do not include any opinions. This means do not include your own personal opinions and do not include or ask the witness for his/her personal opinions. (There could be exceptions to this such as if the witness believes it was a fraudulent event, etc.).
• No Helping The Witness – Do not help the witness with an answer or offer possible answers when taking a recorded statement. Let the witness speak for him/herself and allow for complete answers. If the witness cannot think of a word, do not help because it must be the witness’s thoughts, not the thoughts of the examiner.
• No Comments – Do not make comments during a witness statement – especially statements such as “that sounds terrible!”; “that really must have hurt”; etc.
• No Taking A Bad Statement – Prior to the statement being taken, if you determine the person is a terrible witness, do NOT take the person’s statement. Instead, discuss with counsel whether the statement is necessary.

If all of this is second nature to you – Congratulations, you are a great examiner.  Unfortunately, in my 17 years of practice I have seen more poorly taken statements than good ones.  Even some of the best examiners take bad statements and a bad statement can destroy a defense.

One final recommendation – if the incident/injury is significant, consider retaining counsel immediately.  Counsel can meet with the witness before any statement is taken to learn what took place and understand the facts.  Then, counsel can help formulate the questions.  Counsel should not take the statement but if a statement is needed, the involvement of counsel can help ensure it is complete and not detrimental to the future defense of the claim.

Have any other suggestions or recommendations for do’s and don’ts?  Please share.