When you're bringing a personal injury case, often there are people who witnessed the underlying accident or incident, and can vouch for your version of what happened. Sometimes, simply mentioning (in settlement negotiations or in your demand letter) that you have such supporting witnesses may be enough to convince the insurance company that you can prove the other side was at fault for the accident.
But in some cases, an insurance adjuster may ask you for the names and addresses of your witnesses, with an eye toward speaking with them directly. It makes no sense at this point for you to refuse to identify a witness you have already told the insurance company about. Refusing to give the insurance company the name and address of a witness, or refusing to ask the witness to contact the insurance company, will appear to be an unreasonable lack of cooperation. That will create suspicion and lack of cooperation on the insurance company’s part, and will also completely undercut the value of having the witness. If you won’t let the insurance company verify what the witness says, the insurance company isn’t going to be very impressed that you have such a witness.
A witness who does not want to speak to an insurance company does not have to—not unless there is a formal personal injury lawsuit with subpoenas issued by a court. And if a witness has instructed you not to give out his or her identity to the insurance company, tell that to the adjuster. However, if a witness refuses to speak to the adjuster, the adjuster is probably not going to give much weight to what the witness claims to have seen, which makes that witness almost useless for the negotiation process. (Get more tips on the personal injury settlement negotiation process.)
A witness who agrees to speak with the insurance company has the right to control where, when, and how that contact takes place. A witness can exercise control in the following ways:
• The witness can contact the adjuster rather than having his or her phone number or email address given out.
• The witness can decline to give a written statement.
• The witness does not have to be interviewed in person.
• The witness does not have to permit the interview to be recorded. (It’s usually in your best interest if the interview is not recorded, for the same reasons you wouldn’t want your own conversations with an adjuster to be recorded.)
• The witness does not have to sign any statement drawn up by the adjuster.
• The witness does not have to return to the scene with the adjuster or anyone else.
• The witness does not have to give any more personal information than he or she wants to.
• Once the witness speaks with the adjuster, the witness does not have to speak with anyone else from the insurance company or to repeat the conversation with the adjuster.
Even though a witness is not legally obligated to speak with the adjuster, you are not permitted to instruct the witness not to speak with the insurance company. That would improperly interfere with the insurance company’s right to gather evidence. You can discuss with the witness what is important in the case and stress the points you would like him or her to make clear to the adjuster, but you cannot tell the witness what to say or not say, especially when it comes to who was at fault for the accident. It is certainly okay for the witness to tell the adjuster that you and the witness have discussed the accident, but the witness should be able to tell the adjuster in all honesty that you have not tried to tell the witness what he or she must say.
If the adjuster asks you to identify your witnesses, ask that the adjuster do the same for you. If the adjuster denies knowing any witnesses, write a letter confirming that. If the adjuster refuses to discuss or identify witnesses, write a letter confirming the refusal and state that since the adjuster refuses, you must also refuse to reveal your witnesses. (Learn about your options when personal injury settlement talks fail.)
If the adjuster gives you the identities of witnesses you did not previously know about, do not depend on the adjuster’s version of what the witness says. Contact them directly and get their story straight from them. You may be pleasantly surprised to discover that the witness does not support the other side’s version of events nearly as strongly as the adjuster claims.
You'll find a lot more details on dealing with insurance adjusters as part of an injury claim—including what the adjuster can and cannot ask for—in How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo).