In Part I of this blog series, we learned about the process for obtaining statements that a defendant driver made to his or her insurance company following a car accident. We also learned about the split of authority among Virginia courts, as to whether or not such statements are protected from disclosure under the “work product doctrine.”
Our firm regularly challenges objections like this, and we have a track record of going to court to obtain copies of defendants’ statements to their insurance companies. But once we have a copy of the defendant’s statement on how the accident occurred, how can it be used in court to help our client’s case?
Party admissions
In general, when presenting evidence in court, one party is permitted to introduce admissions that were made by the opposing party at any point prior to the proceeding. For example, imagine that at the scene of the accident, the defendant admitted to the responding police officer, “I ran the red light.” At trial, the plaintiff’s attorney would be entitled to call the officer to the stand in order to repeat the defendant’s previous admission that he ran the red light. This is known as a party admission and is an exception to the hearsay rule.
Witness impeachment
In addition, any witness – whether a party (i.e. the plaintiff or the defendant) or not (e.g. a bystander)- can be “impeached,” or contradicted, based on previous written statements they made. There is a specific statute in the Virginia Code confirming this rule: “A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the civil action[.]”
Exception for personal injury cases
There is, however, one significant exception to the rule governing impeachment with a witness or party’s prior writings. This exception applies specifically in cases for personal injury or wrongful death:
[I]n an action to recover for a personal injury . . . no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case.
In other words, the Virginia Code provides that in a personal injury case, no party or witness may be contradicted by a prior statement that he or she made (like a recorded statement to an insurance company), unless that statement was taken during a deposition or within some certain procedural framework.
The Virginia Supreme Court has explained that the purpose of this statutory provision was to “correct an unfair practice which had developed, by which insurance claim adjusters would hasten to the scene of an accident and obtain written statements from all eyewitnesses. Frequently, these statements were neither full nor correct and were signed by persons who had not fully recovered from shock and hence were not in full possession of their faculties. Later, such persons, when testifying as witnesses, would be confronted with their signed statements and, after admitting their signatures, these statements would be introduced in evidence as impeachment of their testimony given on the witness stand.”
At first blush, this would seem to prevent a plaintiff from using in court the statement that the defendant made to his or her insurance company following the accident. If these statements cannot be used in court, then what use are they?
Supreme Court interpretation
The answer is provided by Gray v. Rhodes, perhaps the seminal judicial decision interpreting Code Section 8.01-404. The Gray case was a wrongful death action, and at trial the attorney for the plaintiff attempted to introduce recorded statements made by the defendants shortly after the incident, which led to the plaintiff’s decedent’s death. The defendants objected, arguing that this was impermissible in a personal injury or wrongful death case under Code Section 8.01-404.
The Supreme Court, however, held that use of the defendant’s recorded statements was admissible in evidence. How could that be? The Court focused on the fact that Code Section 8.01-404 governs the use of prior written statements to contradict a witness. Therefore, the exception in cases of personal injury and wrongful death only applies if the party or witness has already testified, and the opposing attorney is then trying to use the prior written statement to challenge the in-court testimony.
In the Gray case, however, the plaintiff sought to introduce the defendants’ prior recorded statements at the beginning of his case in chief. None of the defendants had testified, so at that stage of the proceeding there was no testimony to contradict. In that setting, the parameters of Code Section 8.01-404 simply did not apply, and the prior statements were admissible in evidence as party admissions.
Application in your personal injury case
In representing plaintiffs in personal injury cases, we can use this rule to our client’s advantage. In Virginia, the plaintiff always has the right to present his or her case first. That means that the plaintiff can introduce the defendant’s prior recorded statement as a party admission before the defendant has testified, so that it is not governed by the impeachment rules of Code Section 8.01-404.
The options for the defendant, who always presents his or her case second, are more limited; if the plaintiff has already testified by the time the defense begins the presentation of evidence, then the defendant’s use of a plaintiff’s prior recorded statement arguably would be for purposes of contraction, and therefore subject to exclusion by statute.
Conclusion
The rules of evidence in Virginia courts are complicated, and perhaps no more so than in the area of impeachment. As you can see from this discussion, it is not always enough to know the rule; you must know the exceptions and interpretations!
With this two-part blog series, we now know how to both obtain a copy of the defendant’s statement to the insurance company, and how to effectively use it in court. As dedicated trial lawyers, the attorneys at Allen & Allen are committed to maintaining a command of the rules of discovery and evidence, in order to advance our clients’ interests throughout the course of their case.
If you have been injured through no fault of your own, you may be entitled to compensation. For a free case evaluation, call the experienced personal injury lawyers at Allen & Allen today, at 866-388-1307.
