Six weeks after a wreck on US-49, the man who was two cars back and saw the whole thing has changed his phone number, moved to Texas for work, and no longer remembers whether the truck's turn signal was on. None of that is unusual. It's the normal course of events, and it's the reason witness interviews are one of the most time-sensitive part of a case after evidence preservation. Witness interviews and having a professional accident reconstructionist go to the scene of the accident are the two big ways to prove your case.
What actually happens to memory
People assume a witness either remembers something or doesn't, and that what they remember stays put. Neither is right. Memory of a sudden, violent event degrades quickly in the first days and weeks, and it doesn't just fade. It gets revised. A witness talks to the other people at the scene. He sees a news item. Somebody says, "the car came out of nowhere," and that phrase becomes part of what he recalls seeing. He answers a few questions from an insurance adjuster and his account settles into whatever shape those questions gave it.
By the time he's deposed eighteen months later, he'll testify sincerely to a version of events that have been through unconscious changes. He isn't lying. His memory has simply been worked on without even realizing it.
A statement taken in the first week is a different piece of evidence than the same person's testimony a year and a half later. Not because the person is more honest early, but because there's been less between the event and the account.
The adjuster gets there first
The trucking company's insurer often has an investigator on the scene within hours. Sometimes before the road reopens. That investigator's job is to lock down favorable statements and identify unfavorable ones. He's good at it because he does it full-time, and he's not required to tell a witness anything about which side he's working for beyond identifying himself honestly.
Meanwhile, the injured person is in surgery, or in the ICU, or making funeral arrangements. Nobody on that side is talking to anybody. This gives the trucking company and their insurance company a distinct advantage. That gap of days or weeks is when the witness record gets built by one party.
Who the witnesses actually are
The obvious ones are the drivers who saw it. There are usually more, such as the following:
The people who stopped. Somebody pulled over. Somebody called 911. Those calls are recorded, and the CAD record (Computer-Aided Dispatch) captures the caller's number and the time.
The first responders. Troopers, deputies, paramedics, firefighters. They saw the scene before it was cleared, and their observations about vehicle positions, debris fields, and what people said at the scene are often more precise than anything a civilian witness retains.
The people who saw the truck before the wreck. This may include a driver the truck passed aggressively ten miles earlier, someone at a truck stop who saw the driver come in, or someone who saw the rig weaving on I-55 north of the crash site. These witnesses often exist, but no one looks for them because they are not listed in the crash report.
People at the shipper or receiver. Loading dock workers see how a trailer was loaded, how long a driver had been waiting, and what kind of shape he was in when he pulled out. In a cargo case or a fatigue case, they may be the most important witnesses there are.
Other truck drivers. The CB and the app networks mean drivers talk. Somebody may have been behind that rig for fifty miles.
The rule that limits who you can call
There's a professional conduct rule here that a lot of people don't know about, and it shapes how a truck case gets investigated. Rule 4.2 of the Mississippi Rules of Professional Conduct: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
When the represented party is a company, the Comment extends the prohibition to persons "having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization."
For a trucking company that has counsel, that means the driver is off-limits. His conduct is what gets imputed to the carrier, and what he says about the wreck would be an admission by the company. The same reasoning reaches a dispatcher when the dispatch decision is part of the claim, a mechanic when the maintenance is part of the claim, and anyone in management regardless. Those people get questioned in a deposition, under oath, with their lawyer present. That's not a workaround, it's the correct procedure, and it produces a better record anyway.
Former employees are treated differently. Mississippi Bar Formal Opinion 215 (1994) holds that Rule 4.2 doesn't categorically bar contact with a former employee of a represented organization and expressly declined to read Upjohn as creating a blanket prohibition. Your attorney may be able to contact a former employee but he/she can't misstate facts or the law, has to make clear he isn't disinterested, should tell the person to get their own counsel, and has to stay off privileged communications the person had with company lawyers.
A driver who left the company after the wreck. A dispatcher who quit. A mechanic who moved on. Those people can often be interviewed, and they frequently know a great deal. It's another reason to move early because people are easier to find while they're still local.
Rule 4.3 governs anyone unrepresented: a lawyer "shall not state or imply that the lawyer is disinterested," and when the lawyer knows or should know the person misunderstands his role, he "shall make reasonable efforts to correct the misunderstanding." Mississippi Bar Formal Opinion 141 applies this to direct contact with an unrepresented tortfeasor and permits it within those limits.
And a rule about what nobody is allowed to do
Rule 3.4(f) provides that a lawyer shall not "request a person other than a client to refrain from voluntarily giving relevant information to another party," subject to a narrow exception for relatives, employees, and agents of a client whose interests won't be adversely affected. If a witness tells you somebody asked them not to talk, that's worth writing down. So is Rule 3.4(a), which prohibits unlawfully obstructing another party's access to evidence or altering, destroying, or concealing material with potential evidentiary value.
What good witness interviews look like
Get there fast. Days, not months. Record it, with permission. A recorded statement fixes the account while it's fresh and prevents a later dispute about what the witness said. Ask open questions before narrow ones. "Tell me what you saw" first. The narrow questions come after, and they come after because a leading question can contaminate a memory before you've collected it. Get what they can't have gotten from anyone else. Where exactly they were. What they were doing in the seconds before. What they heard, not just what they saw — the engine, the air brakes, whether there was a horn. Weather and light. What the traffic was doing. Who else stopped. Ask about the conditions before the crash. Most statements start at impact. The useful material is often in the two minutes before. Get contact information for people who move — a second phone number, an email, a relative's name. Go back to the scene with them if it matters. Sight lines and distances are hard to describe from memory and easy to demonstrate standing in the right spot.
Working with Coxwell & Associates
Witness work is the part of a case where being early is worth more than being clever.
At Coxwell & Associates, PLLC, we start looking for witnesses in the first days, working from the 911 recordings and CAD records rather than just the names in the crash report, canvassing for people who saw the truck before the wreck, and running down the responding officers from every agency that showed up, because in Mississippi that's often more than one and they don't always write the same thing.
We take recorded statements while accounts are fresh. We identify who at the carrier is off-limits under Rule 4.2 and needs to be deposed instead, and who has already left the company and can be interviewed under Opinion 215. And we ask clients not to give a recorded statement to the trucking company's insurer before we've talked, which is its own article in this series.
None of that is complicated work. It's just work with a deadline that nobody announces.
If you were hurt in a truck wreck and you remember somebody stopping to help, get that name to somebody now, before the number changes.
Sources
- Miss. R. Prof. Conduct 4.2, as quoted in Mississippi Bar Formal Opinions 141 and 215
- Mississippi Bar Formal Opinion 215 (Mar. 4, 1994)
- Mississippi Bar Formal Opinion 141
- Miss. R. Prof. Conduct 3.4, as reproduced in Mississippi Bar Formal Opinion 242 (Apr. 2, 1998)
This article is provided for general informational purposes only and does not constitute legal advice, nor does it create an attorney-client relationship. Every case turns on its own facts. Statistics cited are drawn from the public sources listed and reflect the data years indicated; figures are updated periodically by the issuing agencies. If you have questions about a specific situation, consult a licensed attorney. Coxwell & Associates, PLLC, 500 North State Street, Jackson, Mississippi 39201. Free background information available upon request.