Most of us know that, when you’re arrested, you’re supposed to keep your mouth closed and ask for an attorney, whether you’re innocent or not. Perhaps less known is the fact that you should employ the same strategy, if you are involved in an accident, whether you are at fault or not. Why?

Being involved in an accident is traumatizing. Often people are in shock. In such a state, very few of us would be able to control what comes out of our mouths. This is why it is safer to say as little as possible, particularly to any witnesses or to any other party involved in the accident. Instead, try to remain to calm, confirm that 911 has been notified and that emergency services are on the way, and tend to any injuries you or other members of your party may have.

Obviously, very few of us, after an accident, will be a logical frame of mind. Most of us will probably not remember anything about the accident or immediate aftermath, let alone be in a frame of mind to act in a controlled manner. Thinking about what you should do prior, can be a big help, and may help you avoid one common pitfall – saying things that come back to haunt your legal case later.

When it comes to litigation most of us have heard of hearsay. Hearsay is typically not allowed in court. When a litigant tries to bring in a witness to testify about something someone said, while out of court, it will usually be objected to and sustained, as hearsay. However, there is an exception called “an excited utterance.”

An “excited utterance” is one of a number of exceptions to the hearsay rules of evidence. When the hearsay statement falls under one of these exceptions, it can be allowed in. An excited utterance is a statement made about a traumatic or startling event, uttered by the person while the person is still under the shock and excitement of the event. Obviously, this exception applies to accidents particularly well.

Why do courts allow “excited utterances” into court, when they are still hearsay? The theory is that the trauma and shock of the event will inhibit one’s capacity to fabricate what is said. Put another way, most people who have just witnessed or who have just been in a life-threatening situation are not thinking about their future court case at all, and simply speak the truth.

This is exactly the problem! In fact, we can go a step further, and say that people in these situations simply speak without a filter, and they may very well say things that harm them, legally. Sometimes people do this when what they’ve said isn’t even true, but is just their perception. This shouldn’t be a surprise. Confusion abounds, after an accident.

For example, imagine a car is turning left out of a driveway, onto a busy two-lane road. The driver of the car doesn’t realize it, but a man driving a dark-gray truck is speeding at extreme speeds, traveling toward the car at 130 MPH. The driver of the car reaches the end of the driveway, puts her blinker on to turn left, and looks to the right and sees no traffic approaching. The driver of the car then looks left and doesn’t see the dark-gray truck approaching, and pulls out. When the car is approximately three-quarters of the way into its lane, the truck side-swipes the tail end of the car, totaling both vehicles. For purposes of this example, let’s assume the drivers and passengers of both vehicles are fine, except for some minor cuts and bruises.

What happens next? The man gets out of what is left of his truck and the woman gets out of what is left of her car. Neither one has noticed, but in the time it has taken both to get out, approaching traffic – from both directions – has come to a stop and a small, but growing, crowd has gathered. Than man and woman walk toward each other, and – with his arms in the air and his hands on his head – the man lets out a loud, “OH MY GOD! What happened?”

The driver of the car, thinking the accident was all her fault, caused entirely by her pulling out in front of a vehicle she didn’t see, excitedly begins to loudly proclaim, “I AM SO SORRY!! I DIDN’T SEE YOU!”

The, now, large crowd hears everything, and are all potential witnesses, at the inevitable, future, trial. What the woman said is true, she didn’t see the man in his truck, but – if she had known that he had been traveling at 130 MPH – she wouldn’t be apologizing. If she knew this, she would’ve realized that part of the reason she didn’t see him was because he was traveling so fast and was far back, when she first pulled out of the driveway. The problem for her now is that everyone at that accident site heard her essentially admit fault, even though the driver of the truck was certainly more at fault.

This example illustrates exactly why you should try to say as little as possible, following an accident, and – if you say anything – do not comment on the accident and its cause at all. Instead, try to keep your mouth shut and just listen, until the shock wears off and you are more in control of what you say. Even the man’s comment, in the example, could be used against him. An attorney could use his statement “what happened?” – to show that he was driving so fast that even he had no idea what he had hit.

The moral of the story is simple. If you don’t open your mouth, you can’t make an excited utterance. If you are ever in an accident, try to remember this lesson!