Lawrence J. Sher1

Benson squirmed uneasily in his seat. Small beads of perspiration formed on his brow. His eyes darted furtively, like those of a racoon caught in the headlights on a dark winding road. Those jurors who dared to look at him did so quickly, so as to be certain not to establish eye contact; the others kept their eyes averted, embarrassed for Benson, as he'd been caught in a lie. The defense attorney strode triumphantly away from the podium, turning his back on Benson in more ways than one, slowly sipping his water to allow the effect of his devastating cross-examination to sink in.

Although the defense attorney enjoyed the glory and satisfaction of the moment, he knew that he owed a debt of gratitude to the one person who made it possible: the claim representative who took Benson's recorded statement some 16 months earlier. She gave the attorney the tool with which he did his job.

Like any tool, a recorded statement can be well-made and built to last or flimsy and certain to fail the first time it is tested. This article will assist you in developing the skills for taking winning recorded statements.

The Purpose of the Recorded Statement

To effectively take a recorded statement, it is important to bear in mind your goals in taking the statement. First, you want to find out what the witness has to say because the witness' statement may have a bearing upon your evaluation of liability and damages. Second, you want to commit the witness to his story so that it will not change in the future. If you do this effectively and the witness later changes his story at trial, the witness is subject to being discredited upon cross-examination. Third, you want to test the reliability of the witness' story. We test four areas when we take a witness' statement: ability to perceive, truthfulness, bias, and recollection.

Additionally, you should ask background questions and attempt to get some personal information, just to get a sense of the type of person you are dealing with. For example, is the witness a truck driver, a secretary, hairdresser, or a golf pro? Those occupations conjure up images and stereotypes in us and in jurors. An attorney who later handles the claim will benefit by having this information. Because it is important to get a sense of who the witness is, it is preferable to take a statement in the witness' home, where you can learn a lot by observing her furnishings and how she lives. You can offer to take the statement at her home as a courtesy, so that she does not have to travel to your office. In any event, get identifying information that will assist you or your attorney in finding the witness in two years, such as a driver's license number, social security number, date of birth, residence history, as well as the names, addresses, and phone numbers of close family members, friends, and employers.


Before you meet the witness, prepare an outline that covers all the points about which you will question the witness. If you have a "blueprint," you can listen more carefully to the witness' answer than you can if you are formulating your next question while the witness is answering. Also, having an outline allows you to permit the witness to go off on a tangent. Very often, we learn valuable information when the witness goes off on a tangent and volunteers information about a subject that we did not even know we should raise. By having an outline, you can take a detour and then come back to the main road.

Good equipment is essential. Make sure that you have a good tape recorder, that you carry spare batteries, and that you change the cassette tapes when they are worn out. (Some people reuse their tapes, although the better practice is to save the tapes for possible later use as evidence.) If you meet with the witness face-to-face, record some ordinary conversation between you and the witness before you begin the formal recorded statement. Then, listen back to make certain that you are getting a clear statement that can be transcribed. If the recording is unclear, try placing the tape recorder on different parts of the table, always placing the recorder closer to the witness than to you. Make certain to speak loudly, as it will encourage the witness to do the same. If you take statements by phone, record a conversation between you and a co-worker, and then listen back to the conversation to determine whether there will be any problem with transcription quality.

The following two examples are excerpts of real recorded statements that were taken from files that went into litigation. In both instances, the claims representative failed to get a statement that could be transcribed, and the attorney was unable to tell what the witness had to say about the critical issues in that case. They underscore the importance of transcription quality:

Q: Do you recall if it's north or south, or east or west of any major streets? How would you get there?
A: Ah, ah, a street that crosses it that's close to right there by the apartment is, ah . . . . . . .

Q: . . . . . . . . . . . .?
A: Um Hum.

Q: O.K., that's as your driving up . . . . . . . just before it . . . . . . . on the
A: From the right.

Q: Right hand side?
A: Um Hum.

Q: Is it the apartment complex, I mean it's real close to this little shopping mall there or little like used to be a 7-11?
A: Um hum.

Q: Or something like that?
A: Ya it's, it's some kind of ah . . . . on the corner right there. I guess you would call it a fork.
* * * *
Q: Oh, okay. What's the balance on that?
A: About two hundred.

Q: What monthly payments do you make?
A: . . . . . . . .

Q: Any other ones?
A: Uh, oh a . . . . . . .

Q: . . . . . . . . ?
A: Uh huh.

Taking the Statement

When you meet the witness, size her up. If you need to, get a translator. Take the statement in an area where the witness will not be distracted. You may want to start by turning off your cell phone and suggesting that the witness do the same.

Tell the witness the rules for taking a recorded statement: She must speak up; only one person speaks at a time; and only verbal answers are acceptable. Answers such as "Uh-huh" are unsatisfactory. Make sure you get a recording of the witness saying that you have permission to take her statement. Also, ask her whether anyone else has interviewed her or taken her statement regarding the incident.

Bear in mind that it is important to get the witness to commit to a consistent position. Although it is okay to point out inconsistencies in the statement, you should not argue with the witness. On the other hand, if you suspect the witness is guessing, ask her if she is and tell her she should not guess.

If an answer is ambiguous, make sure that the witness clarifies her response. All too often, the questioner does not listen carefully enough, and thus fails to make certain that the witness is locked into clear, unambiguous testimony. One way to clear up ambiguity is to state: "I don't understand your answer. I was asking . . . ."

Never ask a double negative question, because it only invites an ambiguous answer. For example: "Isn't it true that you didn't come to a complete stop before entering the intersection?" If the witness answers, "No," does it mean the witness did or did not come to a complete stop? The better practice is to ask an affirmative question: "Did you come to a complete stop?" If you must lead with a negative (such as "didn't"), end the question with the phrase "Isn't that correct?" This eliminates the problem. For example: "When Mr. Smith spoke with you after the accident he didn't say that the accident was his fault – isn't that correct?"

Finally, do not ask compound questions, because they result in ambiguous responses. For example: "Did you turn left on Pine and then right on Olive?" If the witness turned left on Pine, but not right on Olive, she may not know how to answer the question.

To Lead or Not to Lead

Generally, there are two different types of questions, leading and open-ended questions. Leading questions are generally answered "Yes" or "No." For example, leading questions often begin with: "Isn't it true . . . ." On the other hand, open-ended questions such as "What happened next?" allow the witness to tell the story in her own words.

There are advantages to each type of question. The leading question is the sure-fire tool for obtaining a solid, unequivocal answer to a well-crafted question, but it should be used judiciously. If you use too many leading questions you may cause the witness to feel that you are attacking her. Also, if the statement is later used in court, it may look like you wanted to put words in the witness' mouth.

The open-ended question has the virtue of eliminating the possibility of surprise that could result if the witness later varies or extrapolates upon her response to your "yes" or "no" leading question. However, while the open-ended question allows the witness to "tell her story," such questions can become a problem if the witness regularly goes off on tangents. In that case, your job will be to restrain and rein in the witness. To do so, you may need to resort to leading questions. As a general rule, open-ended questions are best used when you have a witness who is well-focused or is providing favorable testimony. In most cases, it is best to let the witness tell her story and then, if necessary, nail down the testimony with a leading question.

A Few Reminders

In first party claims, it is important not to try to guide the claimant solely into testimony that defeats coverage. An insurer has a duty to explore with equal vigor avenues that establish coverage as well as those that defeat coverage. Failing to do so could later be construed as conduct that constitutes bad faith.

Take nothing for granted. Begin at the very beginning of the story and have the witness walk you through all pertinent events. In adjusting a fire claim, explore arson: determine if the claimant was behind in payments or if the house had lost value. Also, explore third party fault for possible subrogation. Did the claimant recently hire an electrician?; were there problems with the wiring?; were there problems with a major appliance malfunctioning?

In a motor vehicle accident, get the points of impact, the points of rest of the vehicle, the speeds of the vehicles, the directions of the vehicles, and determine whether any alcohol or drugs were involved.

In a slip-and-fall accident, ask to see the footwear and other clothing that the claimant was wearing. Also, ask if he or she is subject to fainting, whether the claimant was taking any medication (which may cause fainting), and whether the claimant has any problems with his or her leg muscles or with balance.

Get information regarding other witnesses, such as their names, addresses, employers, phone numbers, and physical descriptions.

In a personal injury case, ask about pre-existing and subsequent injuries. Obtain the identities of all of the health care providers that treated the claimant for injuries sustained in the present claim as well as previous claims. Ask about the resolution of prior injuries.


If you follow these suggestions, you will take winning recorded statements and assist your employer and/or client in saving money in the long run.

End Notes

1Lawrence J. Sher is an attorney at the Los Angeles, California law firm of Pollak, Vida & Barer. His practice emphasizes the representation of insurers and governmental entities in trial, appellate, and insurance coverage matters. He can be reached at (310) 551-3400; 1800 Century Park East, Suite 400, Los Angeles, CA 90067; and at larsfmmars@comcast.net.

PDF Version of this document