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Documenting Your Claim: Witnesses

You should seek out and interview witnesses to your accident even if you think the insurance company will not dispute liability.  You need to do this as soon as possible for two reasons.  First, people can quickly forget details, change addresses, or phone numbers.  Secondly, it is critical that you talk to a witness before the insurance companies do.  The first person to make contact with a witness gets the benefit of “anchoring” the witness’s testimony.  By asking the right questions and deliberate follow up questions, you can clarify the witness’s testimony and get the witness to resolve doubts in your favor.

If the insurance company is disputing liability, then it is imperative you find and interview witnesses.  You need to know whether the witness will say it was the other driver’s fault and why.  You also need to figure out on how many points the witness can corroborate your story (speed, statements, distractions).  This is usually your only chance to get the adjuster to change his/her mind on liability.  Witnesses may have seen or heard something that you did not.  How the other driver “presents” (i.e. their attitude or appearance) can increase the value of your case.  Even if the witness did not see the actual accident, they can still give you valuable evidence, such as saying the other driver was unapologetic or angry, or that you looked hurt, or that given what they saw they would not doubt that someone could have been seriously hurt.

2 Ways To Get Witness Information

Witnesses are usually listed on the police report.  Sometimes you are lucky enough that the witness stopped and gave you his or her contact information.  There are a couple of ways to contact and interview witnesses:

  1. Call them.  Calling is certainly the quickest way to find out what a witness knows.  However, some people may not want to get involved or talk to you in person.  Use the Witness Script in conjunction with your Witness Statement form.  The script will walk you through how to move through the questions with the witness while filling out the Statement form.After talking to them, ask if you can type up their testimony and send them a copy to sign and/or make corrections.  This way you are getting the witness to commit their story to paper, minimizing the risk they change the story on you.  Send a self addressed stamp envelope with the statement so they witness can drop the signed statement in the envelope and not have to look for an envelope, write an address, or find a stamp.
  2. Send a letter.  A letter is a little less intrusive and lets the person provide you information without the possible anxiety of a stranger calling them asking questions.  The police report should list the witness’s address.  If not, you may have to do some internet research to locate a good address for the witness.  When you think you have a good address, send the witness the Witness Cover letter and Witness Statement along with a self-addressed stamped envelope to get the completed Statement back to you.  You want to make their job as easy as possible because you are after all imposing on them and asking them to do some work on your behalf.  Calendar a deadline 10 days from when you send the letter to follow up with the witness if you have not gotten back a completed Statement.  In 10 days, call the witness and using the Witness Script, interview them.

Conducting Interviews

  1. Begin by asking witnesses for their name, work address, and phone number, position (job title), and their location during the accident. Try to get the witnesses to tell you everything they know without influencing them with your questions. It is best to begin with general questions and ask specific questions later.
  2. Considerations that should be taken into account during the interview are:
    • Do not prejudge a witness. Keep an open mind so you can be receptive to all information, regardless of its nature. Be serious. Maintain control of the interview. Don’t make promises you can’t keep. Avoid contemptuous attitudes. Avoid controversial matters. Respect the emotional state of the witness.
    • Place the witness at ease. Explain that you are simply trying to learn and document your case so that you can get a fair settlement with the other driver’s insurance company.  Explain that you are only seeking the facts related to the accident.  You are not asking them to lie or to support your conclusions.  You just want the facts.  Many inexperienced interviewers ask a witness to support a conclusion of the questioner on accident liability or damages. You think the other driver was at fault, don’t you? You saw me hurt at the scene didn’t you? If the witness has concerns about your claim or collision liability, these statements prompt the witness to be concerned about giving you their opinions and can actually sabotage your auto accident case. The better approach is to listen to the FACTS of the accident and injuries, leave the witness to draw their own conclusions. You may even be wrong in your conclusions, or as to the sequence or violence of the accident.
    • Allow witnesses to tell the story in their own words (do not interrupt).  Always start out with big, general questions to get a feeling for their recall and helpfulness.  You can drill down with specific questions after getting them to open up and talk to you.
    • Don’t push the witness.  You want the witness on your side.  Pushing them or being overly aggressive can cause them to resent you and not want to help.  Even if the witness gives you unfavorable testimony, you still want them to be sympathetic to your claim.  They can still paint unfavorable facts to your benefit and otherwise try to help you where they can.
    • Be a good listener. Be unobtrusive when taking notes. Maintain your self-control during interviews. Don’t become emotionally involved in the investigation.  You must remain calm, cool, and objective.  Never be hostile to a witness or make them feel uncomfortable.

Types of Questions

  1. General Questions. General questions are open-ended questions that can help get the witness talking. For example:
    • What did you see?
    • What can you recall?
    • Can you tell me more about that?
  2. Directed Questions. Directed questions get the witness to focus on a specific subject, without biasing the answer. For example: Did you notice any lights on the vehicle?
  3. Specific Questions. Specific questions are needed for specific information (such as information about a particular light). For example: Did you notice any lights on the vehicle? What color was the light?
  4. Summary Questions. Summary questions help witnesses organize their thoughts and draw attention to possible additional information. Restate what you think the witness told you in your own words and ask if that’s correct. Frequently, the witness will add more information.
  5. Leading Questions. Avoid leading questions. A leading question contains or implies the desired answer. Once you ask a leading question, you have suggested what the witness is supposed to have seen. For example: Was a red light flashing?  The only time you should use this technique is after the witness has told you a fact and you want to lock it in.
  6. Techniques That Do Not Require Questions. Some interview techniques do not require questions. A nod of your head or an expectant pause may encourage the witness to talk. To keep a witness talking, say something like “uh-huh,” “really,” or “continue.” Another technique is to mirror or echo the witness’ comments. Repeat what the witness said without agreeing or disagreeing. For example: You say you saw smoke coming from the vehicle?

Sample Witness Interview Questions

  • What is your name, work address, and phone number?
  • How are you connected with others involved in the accident?
  • When did you see the accident happen?
  • What attracted your attention to the accident?
  • When you first saw the accident, where was the vehicle or equipment? Where was the individual involved in the accident?
  • What was the direction of travel of the vehicle or equipment involved in the accident? Where was the final resting place of the vehicle or equipment? (Have the witness draw a diagram, if appropriate.)
  • Were any other witnesses around? Do you know the names of other witnesses?
  • Do you wear glasses or other corrective lenses? Do you wear a hearing aid? What type? Were you wearing your glasses or hearing aid?
  • Would you like to provide any additional information?
  • Is there anything else you think is important that we did not talk about?

You may want to end your conversation with the witness by telling them they may be getting a call from the adjuster handling your claim.  Inform the witness that they have not obligation to talk to the adjuster if they don’t want to and that if they do talk, they don’t have to agree to the adjuster recording the statement.  But, do not tell the witness not to talk to the adjuster.  This is obstruction or improper interference with the adjuster’s investigation.  Simply inform the witness that they have options.

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