The victim of an accident has a chance to speak with an eyewitness on 2 different occasions. The witness’ statements could work to influence a determination of who should be declared at-fault.
What to ask eyewitness at the scene of the accident
Limit length of conversation. Focus on obtaining the witness’ contact information.
Someone with an eyewitness account could be asked to give his or her location at the time of the collision
Eyewitnesses might also get this question: What did you see with respect to the vehicle’s speed and direction?
What to ask eyewitness during an interview on a later date
• Did you make note of how the driver was behaving? Did you note that driver’s speed?
• What were the road conditions at that time?
• What was the position of each involved vehicle after the accident?
• Do you think that you could make a diagram of the spot where the vehicles collided?
• Do you know of any other accidents that took place at that same location?
• Had you driven past that same spot before? Had it changed in any way?
• Would you be willing to sign a paper that contained your statement?
What question to avoid
Do not ask the eyewitness to restate any comment that was made by another bystander. A plaintiff’s possession of such a comment would not prove of any value during settlement or during a possible trial.
During negotiations, a bystander’s comment would get viewed as an opinion. An insurance adjuster could decide to ignore an opinion. During a trial, a judge would not allow admission of a quoted statement, even if one eyewitness had shared that particular statement with another eyewitness.
Judges never agree to allow the introduction of hearsay. Hearsay is any comment that seeks to share a piece of information that has come from an eyewitness. Members of the jury are supposed to hear only first-hand accounts.
Do not ask any witness about testifying at a trial, unless your lawyer has suggested that you do so. A witness might have conflicting opinions, regarding who was at-fault. By the same token, the same conflicted person might face a challenge with getting to the trial’s location.
That combination of factors could cause the eyewitness to refrain from agreeing to testify. Furthermore, that refusal to testify might seem to deflate your case. You should never invite the introduction of something that might deflate your case.
Lawyers seldom ask a client to seek the testimony of a given individual. A personal injury lawyer in Ottawa would have no way of knowing how a given person might come across to the jury, when answering a lawyer’s questions. Understand that a witness’ off-hand remark could somehow affect the jury’s decision.