When a marine casualty occurs, attorneys and adjusters are often dispatched to investigate the cause of the accident and assess the extent of damage or injury.  The best source of such information is typically the witnesses on the scene.  Because a person’s memory can be fleeting, it may be beneficial to obtain written or recorded statements from all witnesses with pertinent, firsthand information.

Statements can be used both to refresh and witness’s memory if he is called upon to provide testimony at a later date and to keep a potentially unpredictable witness honest so that he doesn’t subsequently change his story.  In either case, it is critically important to carefully consider the substance of what is to be preserved before it is permanently memorialized in a statement.

In a perfect world, a witness’s statement will only contain information that is helpful to your own claim or defense.  But sometimes a statement can unintentionally turn out to be as harmful as it may be helpful.  When this happens, you certainly would not want the statement to be divulged to your adversary; and rest assured that when litigation results, all witness statements will be aggressively sought after through discovery.  For this reason, the timing of when a statement is taken can be as important as what it contains.

Federal and state laws generally protect the sanctity of statements taken in the prosecution or defense of a lawsuit.  However, your opponent might be able to obtain the statements of your witnesses if he can show that (1) he has a substantial need for the statement and (2) he is unable to obtain the “substantial equivalent” by other reasonable means.  The timing of when a statement was obtained has a lot to do with whether it may have to be shared.

As a general rule, a statement obtained immediately after an accident can be compelled from the party who obtained it because it reflects the witness’s recollection when it was most fresh in his mind.  If the statement was obtained after the passage of a considerable length of time, the party wanting his statement can usually obtain the “substantial equivalent” by taking the witness’s deposition.  In that case, the witness’s statement will not be subject to production unless it contains relevant information the witness cannot recall.

Circumstances surrounding a casualty investigation often dictate that statements be taken immediately and that the statements contain as much information as possible.  But because contemporaneous statements may be subject to subsequent disclosure to others, great care should be taken to insure that they don’t include something that could prove harmful to your case down the line.

Note: This article first appeared in WorkBoat magazine.