Understanding the Role of Witness Statements in Personal Injury Cases
Understanding the role of witness statements in personal injury cases can help you avoid ambiguity. For example, if you were in a car accident or were injured in a slip-and-fall case, it isn’t always easy to determine who’s liable. Both you and the other party can point your fingers at each other, but convincing an insurance adjuster or jury could be an uphill climb.
Witness statements can play a huge role in getting compensation for your injuries, as they can establish several parts of your claim. Witnesses often give an objective view of the event, supporting one version of the accident more than the other. They can clarify where, what, and how an accident happened, making it easier to determine fault.
Proving fault and assessing damages can be challenging, but witnesses can provide some clarity. Individuals who were at the scene of the accident can provide details about what happened. Otherwise, it’s your word against theirs.
After your personal injury lawyer files a claim or civil lawsuit, they will collect evidence, such as medical records, police reports, photographs, and video footage, to support your case. As an experienced Diamond Law lawyer will tell you, witness statements play a crucial role in the outcome of a personal injury lawsuit.
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Who can be your witness?
The Canada Evidence Act provides some guidance on acceptable witness statements, but it doesn’t provide any definitions. The Transportation Safety Board of Canada provides a general description in the context of conducting safety investigations. However, the generic definition of a witness statement is a formal declaration by an individual about what they saw.
In personal injury claims, a plaintiff or defendant may collect and use witness statements to support their case. A witness is any person who may have seen the accident happen. It may also be someone who arrived at the scene after the incident and has pertinent information about injuries or property damage. It may also be someone who is qualified to express an opinion about the event, like an accident reconstructionist.
A witness statement documents the evidence of what happened in an incident. It includes a written outline of what a person heard and saw, signed by the witness to verify that the statement is factual.
Potential witnesses in a personal injury claim may include the following:
Eyewitnesses
Eyewitnesses are individuals who were there when the accident happened. Generally, they’ll discuss what they saw and the sequence of events that led to the incident. A personal injury lawyer may use their statements as testimony to prove a claim. Statements by independent witnesses unrelated to any parties tend to be more credible.
Expert witnesses
Expert witnesses have specialized knowledge, and they can provide an opinion about various aspects of a case. Their evidence can help the judge and jury understand medical, financial, scientific, and other issues, as many of these cases may involve technical information that lay people may not easily understand.
Expert witnesses may be doctors, actuaries, engineers, and other professionals. For example, your lawyer may call in a physician who can explain why specific injuries may have long-term effects. Medical testimonies can help juries understand how car accident injuries can change a person’s life forever.
Another common expert witness is a specialist in accident reconstruction. Computer-aided recreation of an accident scene can help the judge and jury visualize what happened and understand who was at fault. Seeing an incident unfold can increase your chances of winning a case.
However, not all professionals qualify to be an expert witness. The court determines that before admitting their testimony in court. In most cases, personal injury law firms have a roster of expert witnesses with the proper credentials to provide testimony for their client’s case.
Familiar witnesses
Family and friends may also make statements in court even if they weren’t there when the accident happened. Generally, their statements relate to how the accident has impacted the victim’s life.
The Role of Witness Statements in Personal Injury Cases
Witness statements primarily support one version of events and play a critical role when there is no clear evidence of fault. For example, if you were injured in a car crash, dog bite, or a slip-and-fall incident and say that it’s not your fault, the other party’s insurance company won’t take your word for it.
Insurance companies typically take the position that their policyholder isn’t at fault so that they don’t have to pay any money. Witnesses can usually clarify the issue when fault is in question, giving you more leverage to get a settlement.
While this isn’t always the case, you may need to get witness statements to prove that the other party was at fault. A witness can be another motorist, the owner of a property, or a dog owner.
Witness statements from people you don’t know are more persuasive and credible than statements you gather from people you know. Most personal injury lawyers try to get objective statements from disinterested parties so that they have a strong case. However, this doesn’t mean that familiar witness statements have no value, as they can confirm other evidence, such as police reports, videos, and medical records.
Witness statements that can be particularly useful include the following:
- Prove inconsistencies: A formal written and signed statement goes on the record. Therefore, if the witness changes their story in court, your lawyer can refer to the previous written statement to prove inconsistencies in the testimony.
- Refresh memories: Provinces and territories have a statute of limitations for personal injury lawsuits to make sure that memories of the event remain fresh in a person’s mind. A written statement that’s made immediately after an incident can help refresh a person’s memory about what happened.
- Admission of fault: Some witnesses may have heard one party recount what happened and admit fault. Their testimony to that effect can refute later testimonies by the at-fault party. This is why it’s best not to admit fault or even apologize after an accident.
The Importance of Witness Statements
Most personal injury claims never make it to trial, and witness statements can help to quickly resolve a claim.
Negotiate better settlements
Witness statements can settle a claim quickly if they establish fault. For example, if someone witnesses a rear-end accident that resulted from the lead driver brake-checking, their testimony can make the lead driver’s insurance company settle a claim.
Witness statements also give the victim’s lawyer leverage to negotiate a better settlement. Since insurance companies want to limit their liability, it’s up to your lawyer to make sure that you get the best deal, and witness statements can help them do that.
Substantiate claims
A personal injury lawyer may depose witnesses to uncover the facts during discovery. Any statements that a witness then provides during trial may significantly affect a jury’s decision to hold the defendant liable.
For example, suppose you slipped on water at a grocery store and injured yourself. If a witness says that the puddle had been there for a long time, the jury may find the store owner liable and award compensation for your injuries.
Verify injuries
To prove a personal injury claim, you need medical records. However, the defendant may challenge the evidence by saying that the accident didn’t cause your injuries and that your condition was pre-existing.
For example, an eyewitness can say that you were injured in an assault before the car accident. Your lawyer can bring in police reports to prove that the injuries from the car accident are different from the injuries you sustained during the assault. Alternatively, they can also bring in a medical expert to verify that your injuries are a direct result of the car accident and have nothing to do with the assault.
Prove innocence
Some accidents occur where the injured party is partially at fault. Witness statements can clear up any confusion about whether the plaintiff bears any responsibility for the accident.
For example, suppose a motorist rear-ends another vehicle on the highway because the lead driver stopped suddenly. If a witness says that the lead driver brake-checked, the rear driver’s lawyer may use that statement to prove that their client wasn’t at fault.
Sometimes, the insurance company may try to reduce or eliminate their liability by saying that the plaintiff was partially at fault. A witness statement may disprove that based on what they saw, heard, or knew (for expert witnesses).
Preserve facts
Some witness statements may come with supporting evidence, such as photos or videos that preserve the facts of the incident. For example, suppose that there’s a T-bone accident and that the dashcam of a third party captures it. Essentially, this video footage has preserved the facts and they can provide it to authorities, insurance companies, or either party, which can help to prove a claim.
Establish negligence
Not all accidents happen because of someone else’s negligence, so no one is at fault in those cases. However, if you say that the other party was negligent, you must prove it to receive compensation for your losses.
For example, if you say that the other motorist was using their phone when the accident happened, you’ll need one or more witnesses to corroborate your claim.
How To Find a Witness
The immediate aftermath of an accident is often stressful, and collecting witness statements might not be your priority. However, you should understand that witnesses can make or break your case, and not presenting witnesses may give rise to suspicion that you might not be telling the truth.
Many people may volunteer to be a witness, but you can’t rely on that. Ask people in the area for help and provide critical information about the accident. Go around the surrounding area to find out if they saw what happened, especially business establishments. Most would have employees or customers who may have seen the accident or heard something.
Many businesses may also have video cameras that might have recorded the incident. Request a written statement from eyewitnesses and photos or videos that anyone might have. Get as many witness statements as possible to corroborate your claim.
When To Approach a Witness
Depending on the circumstances, you might not be physically capable of finding witnesses or taking statements after an incident. In that case, you might be able to get information by going back to the scene or through social media and community forums. Scour posted videos because many people may proactively provide that information if they have it. You can also ask your lawyer to help you find and approach witnesses.
However, if you can approach witnesses, you should do so immediately. Waiting might cause you to lose your chance to connect with potential eyewitnesses.
Other reasons you should interview witnesses immediately after an accident are the following:
- They remember more vividly: People typically remember more details about an incident within a day or two. If you wait a week to ask, they may forget some details or get some of the facts wrong, which can have a significant effect on the credibility of the statement. You don’t want that. Ensure the most complete and accurate account of the incident by interviewing witnesses while the incident is still fresh in their minds. You don’t need a good memory if you tell the truth, but the truth is relative to what you can remember.
- They can help faster: Having strong witness statements on hand can help your lawyer quickly button up a claim or case. For example, if the insurance company or defendant knows that you have credible witnesses to prove that they’re at fault, they’re more likely to come up with a reasonable offer to avoid expensive litigation.
- They won’t be around forever: There is no guarantee that you’ll find credible witnesses after an accident, especially car accidents. Since they’re driving, most people will move on quickly unless you ask them to stop. If they’re willing to do so, it makes sense to get their information and statement right away. You can record their statements on your phone even if you don’t have the correct form. Transcribe what they said on the proper form and you can ask them to sign it afterward.
Make sure that you’re always polite when asking for statements and don’t push too hard. Some people don’t want to be involved, and you can’t force them.
What To Do When a Witness Refuses To Make a Statement
Witness statements are critical to your case, but you can’t force anyone to help even if you know that they saw everything. You may appeal to them, but they have no obligation to provide you with a statement. You also can’t threaten, bribe, or force them in any way.
Your lawyer can apply for a subpoena (Summons to Witness) to compel someone to appear in court. However, there is no guarantee that the court will grant the order and require the witness to appear in court. Additionally, the judge will interview the witnesses before accepting their testimony.
Do witnesses have rights?
Witnesses have a right to refuse to cooperate with an investigation even after agreeing to be a witness. They might decline to make a written statement, attend in-person meetings, or participate in an interview. Your lawyer might try to persuade them, but they have no obligation to accommodate you.
What You Should Not Say to Witnesses
The value of witness statements depends on credibility. You want them to only tell the truth. You shouldn’t tell witnesses what to say to investigators or ask them to withhold any information that may be counted against you. For example, if the other party can prove that you coached or coerced the witness, it could seriously derail your case and may even get you in trouble.
What affects witness credibility?
Finding as many witnesses as possible could help your case, but quality always trumps quantity. A witness statement is only valuable if it’s credible. This doesn’t mean that the witness needs to be a model citizen. Their credibility will stem from their observation of the incident.
Your lawyer can establish the credibility of a witness by proving the following:
- Their location at the time of the accident (e.g., pedestrian, employee at a nearby establishment)
- That they’re not related to any party involved in the accident
- Their situation at the time of the incident (e.g., arrived while it was happening versus seeing only the end part)
- Their criminal record
A witness who expresses their opinion or makes a conclusion about what happened may not be reliable because it indicates bias or preconception of the situation. Moreover, a witness who changes their story or who has a reputation for being untruthful can hurt your case.
A thorough, consistent, detailed witness statement is important in any personal injury case. Lawyers rely heavily on these statements to establish a timeline, the behaviour of the parties, and the impact on their clients. If your case goes to trial, credible witness statements that support your version of the story become even more important.
What Information To Get
If you find a witness who is willing to help, get their name, address, and contact information, and explain that you might need them to make a written statement. With their consent, write down their statement and have them review and sign it. If you can, take down the information at the scene and have them sign it.
You want to make sure that you’ve correctly composed the formal written statement before you send it to the witness for their signature. You must use the header “Witness Statement” at the top. Include the name, address, company name (if available), position, and source of information (i.e., personal knowledge).
The body of the statement is where you logically outline their narrative. The last part will include the statement of truth where the witness will say that the content of the document is true and correct.
Though you can transcribe them, the statements should be in the witness’s words. Judges may be able to tell when one person prepares witness statements for the purpose of litigation from the tone and style of writing.
What happens if the statement is false?
A witness statement must always include a Statement of Truth at the end that the witness signs. This confirms that everything is true, accurate, and in their words. If it turns out that the witness signed a statement that they knew wasn’t true, not only can it harm your claim, but the witness can be charged civilly and criminally.
The personal injury lawyer must make sure that the witness understands the consequences of signing a false statement. The lawyer shouldn’t pressure a witness to sign a statement if they’re not sure about the details. Even if only a part of the statement is false, it can affect the credibility of the entire document.
Most witnesses are fact witnesses, meaning they have personal knowledge of the underlying incident or the parties involved. They may not present opinions or conclusions as an expert witness can.
Did you know?
Consult an Experienced Personal Injury Lawyer
Personal injury cases require you to prove fault, and this can be challenging. Witness statements can go a long way in establishing someone else’s negligence. However, finding witnesses and getting the information you need to prove fault may not always be easy. Additionally, witness statements are helpful only if they’re truthful, accurate, and properly drafted.
Gathering evidence to file and win a personal injury claim takes resources. You can consult an experienced lawyer to help you get witness statements, among other things. Diamond & Diamond Lawyers can provide you with legal advice and represent you to make sure that you have a winning case.
Diamond & Diamond specializes in assisting clients get fair compensation for the injuries they’ve suffered as a result of someone else’s negligence. Witness statements are critical supporting evidence, but the outcome of a claim ultimately depends on the skill of the lawyer.
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