5/20/2019

The Art and Science of Taking Recorded Statements

Eight tips to obtain the information you need to resolve a claim

By Carl “Trey” K. Dowdey III

When handling claims, a critical piece of the early investigation often involves obtaining a claimant’s recorded statement. If completed quickly and thoroughly, a statement can be a pivotal tool for assessing the validity of a claim and steering it toward early resolution. It can also identify red flags for further investigation and help detect claims that will likely go into litigation.

However, a precondition to obtaining this information is that the claimant must be willing to talk and remain engaged in a respectful conversation. This is where the art of the recorded statement is crucial. A skillful statement taker should be professional, fair, and polite in order to avoid moving the claim to DEFCON one. Here are some tips to help you accomplish that.

1. Do It Early

Timeliness is fundamental with recorded statements. Obtaining a recorded statement promptly means that less time will have elapsed between events and receipt of the claim. Moreover, the chance that the claimant cannot recall basic facts will be reduced. The earlier the recorded statement is taken, the more likely that legitimate claims will stand out. Likewise, the sooner the recorded statement is taken, the quicker witnesses will be identified, making them easier to contact and more able to recall specific details.

2. Get the Facts

Another requirement with good recorded statements is to verify the basic facts. As much as possible, get the who, what, when, where, why, and how. Obtaining these facts should help sort the genuine claims from the suspect claims, and it will also lead to other lines of investigation that can help with efforts to accept or deny the claim. Failure to obtain the basic information may lead to confusion, unnecessary delays, and avoidable litigation.

3. Follow Up on Obvious Questions

After obtaining the basic factual details of any given claim, there are always follow-up questions that should be asked. For example, recently a claimant told a claims professional that he was on a pallet jack at work when he ran into the wall of a trailer he was loading, which resulted in him injuring his left ankle. The claimant said that he initially told a coworker, but failed to report his injury to his supervisor. A few days later, the claimant called in to work, asking to be excused for the day, but again never mentioned his alleged work accident to his supervisor. The claimant then reported to the claims professional that he called in to work again the next day, at 1:00 p.m. (on a Friday), when he was scheduled to start work at 3:00 p.m. At that point, the claimant finally decided to tell his supervisor about his claimed work injury to his left ankle the week prior and his immediate need to miss work to seek medical treatment. The supervisor then had the claimant come in to work to fill out an accident report, and authorized medical treatment.

If the claims professional had stopped taking the recorded statement at that point or moved on to a different line of questioning, he would likely have missed some revealing information. However, the claims professional continued questioning the claimant, resulting in the claimant admitting that after he was authorized to miss work to obtain medical treatment, he did not seek it until the following Monday. The claimant went on to admit that he left that Friday afternoon with his mother (a truck driver) on a trip that included a stop to visit his sick aunt. However, for good measure, the claimant reported that he still kept his foot elevated the entire time he was on the road travelling. Obviously, this additional information created doubt as to the claimant’s purported ankle injury.

4. Verify the Witnesses and Contact Information

Another key to taking a helpful recorded statement is to ensure that the names of the witnesses and their best contact information is documented. By the time the case goes into litigation, several years may have passed and the counsel retained to defend the case will need to talk to witnesses to evaluate the case. Accordingly, witnesses’ full names should be obtained, as well as phone numbers and addresses. Cellphone numbers are better than work numbers, since witnesses may change jobs or move.

5. On Any Medications?

At the start of the recorded statement, claims professionals should verify if the claimant has taken any medications, drugs, or alcohol that might preclude an accurate recollection of facts. If this is not done, then claimants may later realize that they said something they regret and change their stories when the case goes into litigation, claiming that their medications, drug, or alcohol usage caused them to be unable to recall facts clearly or understand questions asked. Asking claimants up front if they are taking any medications, drugs, or alcohol that would interfere with their ability to recount the facts can help neutralize a later claim of faulty or foggy memory.

6. Pay Attention to What Is Not Said

Another nuanced art behind taking a recorded statement involves listening carefully to what the person giving the recorded statement omits. Sometimes what a person does not say is just as important as what he does say. Do they avoid stating obvious facts that a non-biased person would point out? Keeping this in mind may often lead to sharper questions, which can help clarify salient issues.

Likewise, pay attention not only to what is said, but also how the claimant responds. With recorded telephonic statements, the claimant is not seen, but helpful information can still be gleaned. Does the claimant have a “tell,” like in poker? Does that person do something subconsciously when he does not want to be forthcoming? Is the claimant uncomfortable with periods of silence? Does the claimant keep changing the subject or interjecting comments that have nothing to do with the question asked? Do the responses seem grammatically correct when the claimant has already shown good grammar? Does the claimant start coughing; repeatedly say, “Ummm;” or fumble with words when he did not have any difficulty talking just a few minutes prior? Does the claimant’s voice crack, or does his answer trail off strangely? Any or all of these can indicate a lack of candor. Of course, some of these may be innocent or irrelevant, but the art of taking recorded statements comes into play when you can discern potential patterns of deception.

7. Anything Else to Add?

While this is a catch-all, neutral question, it is sometimes a good way to let claimants provide information that they have been wanting to get off their chests and can elicit worthwhile information. While this question may certainly strengthen their claim, it may also weaken it. Either way, it will help determine the validity of the claim and whether it should be steered toward settlement or denial/defense.

8. Early Identification of Litigiousness or Unfavorable Evidence

Lastly, a recorded statement may give an early indication as to whether the claimant is predisposed to filing suit for the underlying claim, or for an ancillary tort claim, such as outrage or bad faith. Remember, the recorded statement can cut both ways. Should the claimant later allege something such as bad faith or an outrage claim, the recorded statement could potentially be used against the claims professional or carrier. As such, the art behind taking recorded statements becomes important for protecting against such spin-off claims.

At the end of the day, the recorded statement is an indispensable aid for a thorough initial claims investigation. With practice, the mechanical scientific steps, coupled with an artful finesse, can serve as a vital tool for winnowing out legitimate claims from dubious ones, promoting efficiency, and helping claims professionals quickly resolve sincere claims while identifying claims that should be denied or defended.



Carl “Trey” K. Dowdey III, is a senior attorney in Swift Currie’s Birmingham office. trey.dowdey@swiftcurrie.com

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