Bike law basics: STFU
May 28, 2020 § 17 Comments
Cyclists are pretty good at a collision scene when it comes to refraining from admitting fault. This is in no small part because the vast majority of the time it’s the driver that was negligent, not the person on the bicycle.
However, what do you do post-collision? What do you do in the hospital when the cop calls or comes by to take your statement? What do you do when you get a friendly call from the friendly insurance adjuster just friendlily checking on your “condition” and asking a few friendly questions about what happened? What do you tell friends and family who want to know what happened?
With regard to law enforcement, it’s crucial that you tell them everything as thoroughly as you can for the purposes of the traffic collision report they’re going to write. It’s also important that you not make things up. If you don’t recall, it’s important to say so, because gaps can often be filled in with evidence or with deposition testimony from witnesses, from the defendant, or from crash reconstruction. Inserting what you thought happened rather than what you saw and recall, though, creates a whole bunch of problems later on if the facts contradict your story or if you change your story.
But what about the friendly adjuster who is calling with a few friendly questions? In this case it’s important to remember the following lovely Russian proverb:
The first thing you do, is you shut up. And after you get through shutting up, you shut up some more.Russian Granny
First, the driver’s insurance company is not your friend. They are your mortal enemy when its comes to getting paid for the injuries and damages caused by the motorist who hit you. Nothing you say will be used to your benefit, and everything you say that can be used against you, will be.
Second, you have no obligation to talk to them. Adjusters love to make it sound like you should, or you’re supposed to, or sometimes the creepy ones will insinuate that you must give them your version of events. Fact: You don’t have to tell them shit and you shouldn’t. The only thing you should do when the driver’s insurance company calls is get a) The name and number of the adjuster b) The name of the insurance company 3) The claim number. That’s it.
Don’t be faked by them sympathetically calling to find out “how you’re doing.” This is their first attempt of many to show conclusively that you weren’t hurt at all or that you weren’t hurt as bad as you claim later. Never, ever tell an insurance adjuster anything about your injuries when they first reach out to you.
Third, as tempting as it is to tell your side of the story to a sympathetic listener, especially when the common scenario has arisen that some jerk hit you and then didn’t apologize, didn’t call EMS, didn’t ask how you were, and immediately began lying to the cops about what happened, you can be pretty angry and feel badly wronged. It’s natural to want the other side to hear what really happened, and for the adjuster to know you’re pissed about the shoddy behavior of their insured.
But you know what? That’s what they want you to do and it’s why they speak as friendly, sympathetic folks who just want to “get your side of the story.” Even if you handle the claim on your own, you should never, ever recount your side of the story to the adjuster until you’ve had plenty of time to reconstruct it with a copy of the traffic collision report, with witness statements, with review of the damage to your bike/clothing/equipment, and with your own recollections.
Fourth, speed is your enemy and it’s the ally of the bad guys. The more quickly the insurance company can lock in a confused narrative, an ambiguous statement, or anything that even remotely suggests fault on the part of the cyclist, the more easy their battle later on. By the same token, you only benefit by moving slowly. You just got hit by a 5,000-lb. car, remember? You’ve been traumatized, hospitalized, and are simply trying to resume some semblance of normality, and sorry, the “needs” of the enemy insurer are not on your priority list. You’ll have plenty of time at a later date to set forth your side of the story, and it must be on your timetable, not theirs.
Keep in mind that their “rush” is wholly fake, because in California there is a 2-year statute of limitations for bodily injury claims. What possible reason could there be for their “rush” to get information?
So what do you say when they call? Nothing at all. Get the info I mentioned above, then hang up. You don’t have to be polite, nice, apologetic, nothing. If you have to say something, tell them not to call you again as you intend to hire a lawyer.
The last and perhaps most difficult place to STFU has to do with friends and family. Everyone wants to know what happened, and if you hire a lawyer, the nosier among them will want to know the status of your case. The Perry Mason wannabes, or worse, your actual lawyer friends, will want to know the guts and details of the case.
This is another great place to practice shutting up some more. The only person with whom your communications are confidential is your lawyer. Friends and family, with the exception of your spouse (not your girlfriend/boyfriend), share no confidentiality for purposes of your case. This means that in deposition you will be asked whom you’ve spoken with the case about, and you’re required to name those people.
Woe to you if they are anyone other than your spouse or lawyer, because those people can then in turn be deposed and there’s zero guarantee they will help your case. In fact, they will often greatly harm it because they’ve misremembered what you said, or they didn’t understand it in the first place. Don’t expose your claim to the potentially damaging testimony of friends and family who suddenly find themselves in the crosshairs of experienced defense counsel.
So what’s the best way to handle these inquiries? Simple. “My lawyer instructed me to discuss this with no one. I can’t talk about it.”
I’ve yet to hear of a client using this line and have anyone take a second stab at prying. It really works.
Silence is well-known to be golden. Now you know why.
So what about making a video public that shows the motorist clearly in the wrong resulting in the crash? Is that a no-no, too? Or OK if first screened by the cyclist’s lawyer?
Depends. Best rule: Ask your lawyer. Every case is different. This is a good lead-in for another post–how to STFU on #socmed regarding your collision. Many people post things that are later damaging to their claim on #socmed.
Best advice of the day. Second best advice of the day: come ride your bikes in Minnesota! We have a six-year statute of limitations!
Damn! And unclogged roads … beautiful scenery. Spare bedroom by chance?
Yes, but you sure don’t want to come here now. We have serious social strife, the killing of George Floyd and rioting the latest evidence of it.
Good advice! I also taught my kids from an early age that the four most important words in the English language are “I want my lawyer.”
But Seth, please don’t ever say a *car* was negligent. The *driver* was negligent.
You are right! Will edit that now, thanks!
Thanks! This is one of my little bugaboos. Like Darell with his “It’s a crash, not an accident.”
It’s important. Thank you!
I’d use “motorist” because I consider myself a bicycle driver.
This would be excellent legal advice at many many times more than your monthly rate. Much appreciated. I’m going to print this out and post it near my bikes as a reminder. BTW, my wife and I upped our uninsured/under-insured insurance coverage due to your counsel. Thanks again!
This alone is well worth the price of subscription.
Agree with cchavira. This was great information that I didn’t have an appreciation of. BTW, we upped our underinsured / uninsured coverage based on your advice as well. Very much appreciate your counsel, Counsellor!