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By Warren Wellen
I am an attorney who defends and investigates suspected fraudulent claims. I have had many opportunities to review transcripts of recorded statements taken by investigators and insurance adjusters. I am happy to report that the majority of these recorded statements are very useful and make my job much easier. However, on occasion, I will run across mistakes in recorded statements which make me want to reach for the nearest straightjacket. If you are an investigator or an insurance adjuster, and you have an irresistible urge to take a statement so pathetic that it will drive your defense attorney to the brink of mental instability, then I suggest you commit the following blunders:
1. ASSUME THE TRANSCRIPT WILL NEVER BE EVIDENCE.
This is the mother of all mistakes and the underlying theme of this article. It is very easy: when you take statements, simply pretend that the transcript of your statement will never admitted into evidence or make its way before a jury. If the statement cannot be used a trial, then you are free to have as many lapses as you like. Moreover, your defense attorney will be sure to consider suicide upon discovery that the statement you took is completely useless.
2. DON’T ASK FOLLOW UP QUESTIONS.
Why bother? It is too much work to think about what a response means when you can move on to the next question on your outline. For example, if your subject tells you he had a prior felony conviction, why waste the energy determining if it involved moral turpitude (which makes the felony much more likely to be admissible evidence) or not? If your subject tells you she has had eight prior accidents in the last three years, why ask about details which would lead to valuable impeachment evidence? That takes up your valuable time.
3. DON’T TEST YOUR TAPE RECORDER TO MAKE SURE IT IS WORKING PROPERLY.
Since no one will ever make a transcript of your statement, does it even matter if anything goes down on tape? If you really want to cause grief for your defense attorney, make sure only key responses are garbled or cut off. That way, you can tease your attorney into thinking the statement will be helpful – until the big question is ruined.
4. DON’T CLARIFY THE RECORD WHEN THE SUBJECT NODS HIS OR HER HEAD OR RESPONDS WITH “UH-UH.”
You can explain whether the witness meant yes or no when you are being cross-examined in the bad faith lawsuit against your company.
5. FAIL TO MENTION THE DATE.
Why be concerned with such minor details? When the claimant tells you his pain is gone, why waste your time by recording the date. Who cares if he submits bills for three more months of treatment? Your defense attorney will be laughing stock of the legal community when she cannot use the statement to impeach the witness because it is not clear when the statement was taken.
6. FAIL TO ASK PERMISSION TO MAKE A RECORDING OF THE STATEMENT.
It is implicit that the witness gave you permission – just like it is implicit that your defense attorney will want to ram her head into the wall many times when she gets the transcript of your statement. This technique gave Linda Tripp immortality.
7. FAIL TO IDENTIFY WHO IS PRESENT IN THE ROOM.
That way, when someone besides you or the witness speaks, everyone can have a good time guessing who it was. Juries love intrigue.
9. TURN THE TAPE RECORDER ON AND OFF FOR BREAKS IN THE PROCEEDING WITHOUT EXPLAINING WHY ON THE RECORD.
No one would ever think of accusing you of doctoring the tape. That never happens. Your defense attorney will especially love the embarrassment of trying to explain this to the jury.
10. MAKE SURE YOUR QUESTIONS ARE VAGUE AND AMBIGUOUS AS WELL AS CONFUSING AND COMPOUND.
Your supervisor will appreciate your efficient use of time by squeezing five questions into one. Your defense attorney will be so proud of you. Here is a good example to follow:
“Q: Okay. So, when you were approaching the intersection, was it from east to west or north to south, or was it before the light changed colors and you noticed your view was obstructed by the speeding truck that was parked in the driveway of the clinic where they cracked your neck and gave you hot packs for how long?
A: Yes.”
What could be clearer? The witness obviously was not confused.
11. COMMIT ERRORS IN SEMANTICS.
This is like ice skating in the Olympics. Why go for a double negative when you can land a triple axl dangling participle. Why ask something easy like “Did you tell Dr. Smith about the 1994 injury to your right knee?” when you can score points for difficulty with something along the lines of: “It is not true that you did not tell the doctor that you had not injured yourself at any other time other than the 1994 injury to the knee which was not on the left side of your body?”
12. ASK LONG WINDED QUESTIONS WHICH RAMBLE ON AND ON AND NEVER SEEM TO GO ANYWHERE (an attorney would never ever do this).
This will make you look very smart. Besides, a hopelessly confused witness will play right into your hands. Who cares if the jurors are just as hopelessly confused.
13. ALLOW THE SUBJECT TO INTERRUPT YOU BEFORE YOU FINISH YOUR QUESTION.
Step on the response with your next question. This is another great time saver. Your supervisor will appreciate your efforts as you squeeze more statements into a busy day. Avoid pauses and uncomfortable silence. They just waste time. Besides, defense attorneys love the challenge of trying to piece together broken fragments of questions and answers.
14. DON’T ASK FOR THE NAME OF A FRIEND OR RELATIVE WHO WOULD ALWAYS BE ABLE TO REACH THE WITNESS.
People never move, disappear or change their telephone numbers. Thus, why worry about any problems reaching your star witness on the eve of trial?
15. REFER TO EXHIBITS WITHOUT CLEARLY IDENTIFYING THEM
Nothing will waste your defense attorney’s time more than providing 50 pages of recorded statement testimony about a diagram of the accident scene which is not identified and nowhere to be found. Attorneys and jurors will appreciate the opportunity to exercise their imagination.
16. WHEN THE TAPE REACHES THE END OF A SIDE, MAKE SURE TO CONTINUE ASKING KEY QUESTIONS BEFORE YOU DISCOVER THE TAPE NEEDS TO BE TURNED OVER.
This goes back to the initial concept that the recorded statement transcript will never go into evidence. Since your statement is really just a useless waste of time, why should it matter if any important testimony is captured on tape?
17. HARASS THE WITNESS.
Don’t hold back. Let out all your hate and anguish. Purge your demons. Let the witness know what you really think. Juries especially love it when witnesses are badgered, harassed and ridiculed. That way they can feel good about the million dollar verdict they give.
18. DON’T LAY ANY FOUNDATION.
This is a most effective method for rendering inadmissible almost any response to a key question. For example, what good is a question such as “how fast were you going?” without laying the foundation of time, location, place, etc? What good is “what color was the light” without foundation? No good at all – which goes a long way towards your goal of ticking off defense counsel.
19. RUIN A GOOD ANSWER.
This is a more advanced method of destroying a statement. The trick is to rehabilitate a bad response. For example, suppose you ask the claimant what parts of his body he injured in the subject accident. He responds he injured his neck and lower back. You ask him if he injured any other parts of his body, and he says no. But, his medical records state he injured his left leg in addition to his neck and lower back. Leaving his response alone will lay the groundwork for impeachment. However, your goal is to render the statement devoid of any value whatsoever. Thus, you should ask something like the following: “Here is your medical report which shows you also injured your left leg and it must have accidentally slipped your mind, so isn’t it true you injured your left leg in the accident?” If you are lucky, the claimant might even share some of his enormous settlement with you in appreciation of your efforts.
20. MUMBLE.
It is too bad Shaquille O’Neal is not an investigator. Besides the fact he would easily harass witnesses with his size, Shaq speaks as if he is storing several cartons of marbles in his mouth. Mumbling, especially when combined with poor tape recording technique, greatly decreases the quality of recorded statements. This will help you reach your goal of causing your defense attorney to achieve total psychological collapse.
If you practice hard, hone your technique and put your mind to it, there is no reason why you cannot take completely lousy statements incorporating at least half a dozen or so of the above listed blunders. This should go a long way towards accomplishing your purpose of raising your defense attorney’s blood pressure to dangerous levels. Your attorney will be sure to save the transcript of your statement for useful purposes such as nose blowing or cleaning old coffee grinds. Attorney are already a fairly unhappy and stressful bunch. Why not drive them over the edge?
Warren Wellen is an attorney with the firm of John Hill & Associates. He can be reached at (818) 552-2400.
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