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Basic evidence law says that a witness’s statement shortly after an event is more trustworthy than testimony given months or years later. But in automobile accident cases, defense lawyers typically won’t provide discovery on the most contemporaneous account of what happened: the statement the defendant gives to his or her insurer after an accident. Until now, that is. The New Jersey Appellate Division ruled on Jan. 16 that as long as the statements are not taken at the direction of an attorney, they are not protected by attorney-client privilege or the work-product doctrine, and hence they are discoverable. “[T]he statement of a party to his insurer is not protected from discovery, at least to the extent that it consists of statements describing the accident,” wrote Appellate Division Judge Donald Coburn in Pfender v. Torres, A-85-99. The ruling isn’t quite black-letter law, however. In an earlier decision, Medford v. Duggan, 323 N.J. Super. 127 (App. Div. 1999), another panel ruled that a witness’s prior statement to an insurer was protected work product, unless the witness could no longer recall the event. The conflict between appeals panels would be good ground for the state Supreme Court to grant certification, and the defendants’ attorney, Mitchell Berman of Vineland, N.J.’s Eisenstat, Gabage, Berman & Furman, says he will petition. But for now, plaintiffs’ lawyers can rejoice. The decision, they say, will discourage defendants from altering, even slightly, their prior account of an accident. “[T]he practice of ‘sharpening-up’ their version of what happened is going to be gone now,” says Robert Porter, of Cherry Hill, N.J.’s Friedman, Bafundo, Porter & Borbi who filed an amicus curiae brief for the Association of Trial Lawyers of America. And defense lawyers say they are bracing themselves for a flood of discovery requests from plaintiffs’ attorneys seeking such statements, if Pfender is not reversed. The appeals panel found that the defendant’s prior inconsistent statement could have affected the outcome. Joseph Torres, who drove his employer’s car over Katherine Pfender’s foot at a gas station, testified at trial that he was driving about 5 mph, or at most 10 mph, when he entered the gas station. He testified that he did not see Pfender until she stepped into his path. But he originally told his carrier that he might have been going 10 or 15 mph, and that he had seen Pfender before she stepped into his path. Since the pretrial motion of plaintiffs’ attorney Mark Kehoe to compel the production of that statement had been denied, he had no way to cross-examine Torres about it. The jury found that Pfender bore 70 percent of the fault for her injuries. Kehoe, of Marlton’s Monteverde McAlee & Hurd, appealed. In reversing, the Appellate Division panel rejected the claim of attorney-client privilege, noting that Torres didn’t make his statement at the specific direction of an attorney and that nothing indicated he was seeking legal advice at the time. Indeed, no suit was pending and no defense lawyer was assigned. Thus, the panel found, the insurer may have had other motives in taking the statement at that point — namely, establishing coverage. “Only the incredibly naive would suppose that an insurance company’s first concern is anything other than whether it is obliged to provide a defense,” wrote Coburn. Nor did the attorney work-product doctrine protect the statement from disclosure. The panel held that this doctrine only protected the mental impressions and legal theories of a party’s attorney or representative. This is the portion of the ruling that conflicts with Medford. Under court rules, in order to overcome work-product protection, a party must demonstrate a substantial need for the information and an inability to obtain the “substantial equivalent” of it by other means. According to Medford, the “no substantial equivalent” requirement could not be satisfied, and thus a statement to an insurer could not be obtained, so long as the person who gave the statement could still be deposed. Unless the witness no longer had a clear recollection of the event in question, the deposition was the “substantial equivalent” of the prior statement, reasoned the Medford panel. The Pfender panel said it agreed with Appellate Division Judge Murry Brochin’s dissenting opinion in Medford, which said that the uniqueness of a witness’s prior statement and its value as a tool for cross-examination satisfied the “no substantial equivalent” requirement. Insurance companies may be able to insulate themselves from Pfender by assigning a defense lawyer to a case sooner, before the insured’s statement is taken, says Thomas Hight, an insurance defense attorney with Bloomfield’s O’Meara & Hight. That would bring the statement within the protection of attorney-client privilege However, having to hire an attorney earlier means incurring more attorneys’ fees, notes Berman, in cases the insurer might otherwise have amicably adjusted on its own. The Pfender court’s strongly worded and, at times, even sarcastic opinion might also discourage such maneuvering. For example, the panel said it gave little if any weight to the legal-sounding statements in the certification Berman submitted from Torres on the issue of attorney-client privilege. Torres “demonstrat[ed] what some might consider a remarkable understanding for a layman of the law of attorney-client privilege,” wrote Coburn.

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