Viewpoint: When Taking Recorded Statements, Get the Facts Early

By Lauren E. H. Meadows | December 1, 2023

Recorded statements are an essential part of evaluating a claim. Unlike depositions, which usually are taken years after the incident itself, a recorded statement typically occurs within days of the subject incident, when the facts and circumstances are fresh in the witness’s mind. By the time the case goes into litigation, key facts and witnesses could be lost. In order to obtain an effective recorded statement, consider utilizing the steps explored below.

Explain the Significance of the Recorded Statement to the Witness
Lauren Meadows

To help combat any annoyance with having to sacrifice time to give the recorded statement, explain to the witness at the outset that the purpose of the recorded statement is to document the incident while it is still fresh in his or her mind. Details and memories can become foggy over time, and by giving an immediate recorded statement, the witness can provide their best recollection of what occurred, which will assist in the investigative process.

Be Compassionate, Not Adversarial

In the case of a claimant witness, recognize that he or she may be emotional (and perhaps even hostile), particularly where the alleged injuries are severe. Be compassionate in asking them to discuss the incident without offering opinions, judgments or commentary. Notably, being compassionate does not mean apologizing for the incident or otherwise accepting responsibility for it. Rather, being compassionate means being a receptive listener and allowing the witness to vent, even when you disagree. Being nonadversarial and putting the witness at ease will help the progression of the conversation.

Prepare in Advance

Prior to beginning the recorded statement, jot down a list of the critical topics that need to be covered in the statement. For example, in the case of a motor vehicle accident, topics would include:

  • What speed was the claimant traveling?
  • What speed was the insured traveling?
  • Did any part of the claimant’s body impact the inside of the vehicle?
  • Had the claimant observed the insured prior to the impact?
  • Where had the claimant been before the accident occurred?
  • Did any object in the vehicle (purse, cell phone, etc.) move or become displaced as a result of the impact?
  • Did the claimant request medical attention from the responding police officer?
  • How many hours had the claimant been awake before the accident occurred?
  • Was the claimant’s ability to drive impaired in any way?

As another example, critical topics in the case of a slip-and-fall would be:

  • Had the claimant ever been to the premises before the date of loss?
  • Had the claimant passed through the area on the date of loss before the fall occurred?
  • What type of clothing (particularly footwear) was the claimant wearing?
  • Did the claimant have anything in his or her hands when the fall occurred?
  • Did anything obstruct the claimant’s view of the substance/object that caused his or her fall?
  • Where was the claimant looking at the time of the fall?
  • Was the claimant on any medications at the time of the fall?
  • Was the claimant in any immediate pain at the scene?
  • Is the claimant aware of any witnesses to the incident?
  • Has the claimant sought medical treatment for his or her alleged injuries?
Ask Open-Ended Questions and Follow Up as Needed

Do not simply read the police/incident report to the witness and ask if the document accurately states what happened. Instead, ask open-ended questions that solicit a narrative response from the witness. For example, “Please tell me what happened in your own words,” or “I would like to hear about what happened that day from your perspective.” The goal is to obtain the witness’s version of the events, not simply a “yes” or “no” response to a question. Assess whether the witness struggles to give a narrative response (and appears to be changing his or her story while describing the incident) or is resolute in his or her description of what happened.

After the witness completes the narrative, then ask follow-up questions as needed, ensuring that you have obtained information regarding each of the critical topics discussed above. However, do not be so focused on “checking off” your topics list that you miss follow-up opportunities based on what the witness has said. Instead, be an active listener and consider whether the witness’s narrative raises additional questions/topics you had not previously thought of. Allow the conversation to go “off topic” to some extent, particularly if the witness is openly volunteering information.

As the recorded statement comes to a close, submit a final catch-all question to the witness, asking if there is anything he or she would like to add change. This final question again solicits a narrative response, giving the witness one last opportunity to supply information.

Obtaining a Recorded Statement Does Create Some Risk

The purpose of a recorded statement is to provide preliminary information about the claim to aid in the investigation process. While the statement may help weed out illegitimate claims, it can also provide negative evidence that substantiates the claimant’s position regarding liability and/or damages. This documentation of negative evidence does create some risk, particularly as it relates to a subsequent bad faith claim for failure to settle, as it gives the insurer knowledge of facts potentially supporting a basis for settlement. With respect to a bad faith claim, this knowledge then goes to the evaluation of whether the insurer’s settlement position was reasonable under the circumstances.

However, do not be overly concerned with whether the recorded statement will create good or bad evidence. The ultimate goal of the recorded statement should be obtaining evidence for the purpose of resolving the claim, regardless of whether the claim is later accepted or denied.

About Lauren E. H. Meadows

Meadows is a partner in Swift Currie’s commercial litigation and insurance coverage practice areas in Atlanta, representing insurance companies and their insureds. She can be reached at

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