Response to “Consider this Before not Speaking to the Police at an Accident.

Response to “Consider this Before not Speaking to the Police at an Accident.

After reading Brian H’s letter I felt the need to respond in order to clarify the position given by Tom McGrath. In the interest of full disclosure, let me say that I am an attorney who works for Tom representing injured motorcyclists in Virginia, and have done so going on four years now. Also let me say, lest anyone consider the previous article or this response to be anti law enforcement, that I am a former police officer of three years, and a former prosecutor of ten years.

Brian H is clearly a dedicated police officer, and I thank him for that dedication. If there were more officers like him my job would be much easier. However, that is not always the case. I cannot count the number of cases that I have had where a motorcyclist has been injured, and before being able to proceed with his or her injury claim, I have had to go to court to defend that person for a traffic charge that they received due to either a misunderstood statement given by the motorcyclist, or due to a statement given that turned out to be inaccurate. Other times, I have had to defend the injured motorcyclist due to them being charged by an officer who arrived at the scene who was not as thorough as Brian H, and made up their mind early on that the motorcyclist was at fault. Keep in mind that the police officer is there to make a determination as to what occurred and whether there was any criminal violation that contributed to the accident. The officer is not there to protect the injured party from a claim of contributory negligence from the insurance company. That does not make the officer evil or wrong, it just puts the officer’s interests in a different place than the injured party in many instances.

When an injured person makes a statement at the scene which is taken the wrong way or is inaccurate, and that statement can be used and taken to infer that the injured party may have been in any way at fault, the insurance company will use that statement to claim contributory negligence and deny the claim, even though the other motorist was clearly at fault. Additionally, if the statement can’t be used to show contributory negligence, but is an inaccurate statement, the insurance company and their lawyers will use it to show the injured party’s story has changed, and that they are therefore fabricating. Brian makes a true statement; he says that “it saddens me that our society has become so fraught with people and insurance companies unwilling to accept their responsibility that we now have a lawyer advising motorists not to speak to the police.” He is right, that is sad. However, my firm’s job is to protect the client in the atmosphere in which we live, not the atmosphere in which we should live. If that means the best way to protect the clients interest is to say do not give a statement at the scene of an accident, then it is my duty to say that loud and often.

Brian disagrees with the proposition that, due to adrenaline, pain, or anger, that the scene of the accident is not the place to give a statement. He asserts that the best time to remember what occurred is as soon after the event as possible. He further asserts if you choose not to speak to the police that you may cause vital information to be lost and not properly considered during the investigation. First, no one is suggesting that you will never make a statement. You should however first get medical attention and consult an attorney. Second, no information is going to be lost by waiting a day or so to give a statement, if you do in fact give one. You may never give a statement depending on the situation. However, the information will not be lost because you and your attorney will have it. The police do not determine the outcome of a civil case. We have had numerous cases in which the officer was convinced that the client was at fault (many times due to the erroneous statement that they made). However, in court, we were able to show that fault lies with the other party. Additionally, police officer’s and police organizations recognize the need to calm down and seek counsel before making a statement. When I first came on with Tom, I agreed to be a Police Benevolent Association Attorney. Among my duties was to go to the scene of a police shooting, or other incident which caused harm, in order to consult with the officer before determining when and if they would give a statement concerning any criminal investigation of the matter. Many times I would have them wait a few days before doing so due to the adrenaline and shock of what had occurred. The officers always appreciated it, and the departments had to respect that right. In fact, many officers in tidewater have my personal cell phone because I agreed to go to such scenes on a voluntary basis (at no charge) because of my background and understanding that the time to calm, consult, and reflect is critical to getting an accurate picture. If this is good enough for the police, why is it not good enough for every motorist in the Commonwealth?

To be clear, our firm is not anti-law enforcement. We are however pro-injury victim. When the choice comes down to the convenience of the criminal investigation versus the interests of the injured motorcyclist, our advice will always come down on the side of the injured motorcyclist. The article by Tom was offered so that if you find yourself in that situation, you will have the knowledge to protect your own rights.

If anyone has any further questions, comments, or disagreements with any of the information or positions provided or taken herein, I would welcome your phone call. Additionally, I would be more than willing to come to any meeting of your organization to explain further, answer any questions, or provide any further information concerning your legal rights as a motorcyclist in the Commonwealth of Virginia.

Matt Danielson
Law Offices of Tom McGrath
(800) 321-8968
(757) 595-7505

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