The time after a car accident can be stressful and frightening. Painful injuries and worries about keeping up with work and family are the biggest concerns. You may be in no position to speak to anyone – let alone the insurance adjuster for the at-fault driver. But the insurance company will often contact you and ask you to settle your claim quickly, often for a figure that is far less than it is worth. If you have been hit by a car while riding your bike or as a pedestrian, you can expect a call from the insurance company. My advice: Never speak to them without a lawyer.
No matter what the adjuster tells you, the at-fault driver’s insurance company does not have your interests in mind. In fact, the adjuster has a conflict of interest in saying anything to you about the value of your claim. It is important NOT to speak with the at-fault driver’s insurance company without counsel. Any competent attorney knows that a call to the insurance company is likely to be recorded; therefore, it is not in your interest to say anything at all. It is best to leave all communication to your counsel.
Why is this so important? First, the Illinois Rules of Evidence may allow your statement to be admissible at trial. Even if you think your comments would be innocuous at best, do not take a chance that could cost you potentially thousands later.
Second, talking with an insurance company’s representative can be an uncomfortable experience. You may inadvertently express your thoughts or opinions in an unintended manner or communicate an idea about the accident that is incomplete or inaccurate. Often the adjuster will ask questions that have legal meanings that differ from their plain and ordinary use. A clever adjuster will exploit anything that can be used against you, even if you did not mean to say it in that manner. Do not let this happen. Speak only through counsel to avoid jeopardizing the value of your important claim.
Third, in the initial days following your accident, you may not know the full extent of your injuries. Often, directly after an accident a person will not feel pain and will not seek medical attention. It might be days or even weeks later that you begin to realize the full nature of your injuries or what you must do to seek appropriate treatment.
Fourth, your statements may constitute testimony by you, even if you were not allowed to have a lawyer present. A statement about how you feel, which might indicate a lack of pain, for example, can be used against you at trial as an exception to the hearsay rule. A “then existing mental, emotional, or physical condition” offered by you can be used against you in court. Illinois Rule of Evidence 803. For example, something as innocent as “I was a little sore today, but I went to my kid’s soccer game” can easily be used to argue that you are not as injured as you claim. There may be nothing wrong with you having attended the soccer game, but you should not be deposed without an attorney present to ensure that questions are presented fairly, as required by our rules of court.
Fifth, our rules of court place limits on how many times you can be deposed. An out-of-court statement made voluntarily by you can also be admitted as a “prior inconsistent statement” to impeach your credibility when you are later compelled to testify. Even if you endeavor to be as truthful and accurate as possible, you may unnecessarily be setting yourself up for impeachment.
It is easy to make a statement that inadvertently harms your case. The insurance company can induce you to agree to facts or ascribe knowledge of complex legal principles to you that are inappropriate or which have not been established. In the end, you risk causing your case to be undervalued at a critical time, when the insurance company may be setting the amount of their claim reserves (the minimum amount the company is required to hold in a reserve account during the claim period, in anticipation of its liability to pay a settlement or verdict), even before medical treatment is ordered, let alone completed.
Always remember, no matter what an insurance representative tells you, they do not have your interests in mind when they speak with you. The adjuster may not take your claim seriously until they know you have hired a knowledgeable insurance claim attorney to represent your interests and protect your right to receive just compensation.