Skeldon: Think before you speakWritten by Mark Skeldon | | firstname.lastname@example.org
Here is advice that you have been taught by parents and teachers since you were little: Think before you speak. This phrase has a meaning in the law that you should keep in mind if you are hurt as a result of the negligence of another.
Initially, it is important to understand a rule of evidence that relates to statements made outside of court. Often, if a statement is made out of court it cannot later be used in court. These out of court statements are called hearsay. There are, however, many exceptions to the hearsay rule. One exception is that an admission made by a party to the case is not hearsay and is admissible as evidence.
Two common examples make my legal point clear:
Example 1: You are at the store buying some food. You are pushing your cart along and looking on the shelves for food when you slip on something, fall down and injure yourself.
After your fall you will no doubt be approached by employees of the store who will check to see if you are OK. What you may not be aware of is that the employee is also very likely building a record in the event that you take legal action against the store for your injuries. The answer to a seemingly innocent question could derail a personal injury claim that you may have and leave you with no remedy for your injuries.
Take this question for example. “When did you see the oil you slipped on?” (remember, you just fell down and injured yourself and you may be in pain and disoriented). You confusedly reply that you think it was just before you slipped in it. Later you remember that you didn’t see the oil until you were on the ground.
Your statement may have derailed your case. In Ohio, the open and obvious doctrine is often invoked as a defense to personal injury claims. This doctrine simplified means that if you saw a peril or should have seen a peril, you cannot hold another party liable for injuries sustained due to the peril.
This situation could have been avoided by simply telling the store workers that you are injured and you need treatment and will talk to them later about how it happened.
Example 2: The second example is a car crash. If you have ever been involved in a car crash you know that once the crash is reported to your insurance company or the other party’s insurance company, the insurance company will quickly want to get a statement from you.
This statement will again serve two purposes. One purpose is to alert the insurance company to the facts of the case that led to the claim. The other purpose is to build a record to see if there is a basis on which your potential injury claim can be denied.
You may be asked after the accident, “Have you ever had any pain in your neck before?” If you answer yes, you may quickly find yourself besieged with questions about your prior neck injury that you were not prepared to answer. Many a personal injury claim has been derailed by a long-winded answer that made damaging statements to a case.
A good rule of thumb is to not speak with anyone about your injury until you talk to an attorney. If you have been injured by someone else’s negligence it is not a good idea to speak with that person or company or their representatives. This is because they have an interest directly adverse to yours. The negligent party does not want to pay you for your injuries if they don’t have to.
Waiting to make a statement until you have an attorney can help you make sure that the facts in the record reflect what really happened so that you can be fairly compensated for your injuries.
Your parents and teachers were right. Heed their advice and mine and think before you speak.
Mark Skeldon is a solo practitioner attorney and practices of Counsel to the Law Offices of Borgstahl and Zychowicz LTD. This column does not constitute legal advice. It is Skeldon’s general legal analysis. He can be reached at email@example.com or (419) 654-4752.