When to take your eyes off the medical issue and focus on the legal one?
July 17, 2018 6:35 PM   Subscribe

A relative of mine was critically injured in an accident this weekend. My relative was most likely at fault, and an investigation is underway. Other people were also injured. My question is partly legal, partly about etiquette.

Relative has been in an induced coma since Saturday night, but today they started showing signs of slightly increased responsiveness. There is a very good chance that if my relative regains consciousness and cognitive function, they will be charged with a felony due to the injuries sustained by the other people. The relative's parents and immediate family members are obviously most concerned about their survival and recovery. I don't think they have discussed -- or admitted -- that my relative will likely need legal representation.

My question is two-fold: 1) At what point do they need to retain a lawyer? My worry (and I'll openly admit that I'm catastrophizing, because that's what I do) is that if the relative emerges from the coma and starts telling the story of the accident, they may incriminate themselves. Is that even a possibility? Could something someone says after they've suffered a traumatic brain injury and been in a coma be used against them? (Because wouldn't that information be unreliable?)

2) This happened on Saturday night, and we're all still dealing with the shock. I don't know if anyone else is thinking about the potential legal issues. Is it horribly inappropriate to ask if this is something they've thought about? I obviously don't want to cause anyone any more pain than they're already dealing with, but I also don't want them caught off-guard in a way that makes things worse than they already are.

It feels like a very narrow tightrope, and I'm not sure how to cross it.
posted by mudpuppie to Law & Government (14 answers total) 1 user marked this as a favorite
Holy crap this is a legally specific question. In short, the answer here is, "if you think they need a lawyer, they probably do" and "anyone who suggests otherwise is assuming details of your specific situation that may or may not be accurate".

I'm usually the first to say Mefites are too quick to say "lawyer up", but in this particular case, a quick consult with a criminal defense lawyer will answer your questions, will not rely on Mefi's legal speculation, and will only cost a few hundred dollars.

Go talk to the lawyer.
posted by saeculorum at 6:49 PM on July 17, 2018 [8 favorites]

This is a very narrow tightrope, indeed, but your instincts are good. They need a lawyer and you should gently move someone with authority (the parent? the person making medical decisions?) toward engaging one right away. I think your "I don't want to add stress or pain, but I want to help protect everyone as much as possible" tactic is the way to approach it with someone who can engage the attorney.

Good luck and kind thoughts.
posted by crush at 6:56 PM on July 17, 2018 [2 favorites]

In short, the answer here is, "if you think they need a lawyer, they probably do" and "anyone who suggests otherwise is assuming details of your specific situation that may or may not be accurate".

I'ma nip this in the bud. I know they need a lawyer. My questions are: Is it too soon to tell them that, given that relative is still comatose, and when does one physically need to be in the room?
posted by mudpuppie at 6:58 PM on July 17, 2018 [2 favorites]

Is it too soon to tell them that


given that relative is still comatose

Lawyers don't move instantaneously; this gives them time to find a lawyer.

when does one physically need to be in the room

That's a specific legal question the lawyer will answer. I'll note that most lawyers don't like to travel unnecessarily and they are ethically obligated to act in your interest, so it's not like they're going to sit around watching your relative for fun.
posted by saeculorum at 7:10 PM on July 17, 2018 [6 favorites]

This was hard for me to read, for reasons that will become clear if you read below, but yes, they should get a lawyer now, or get a relative to work on getting a lawyer now. The family themselves also need to be careful who they talk to about this and what they say, and who might overhear them.

I know that is probably something they will not want to think about, given the circumstances, but you are right that someone should try to caution them, and also suggest consulting a lawyer.

I agree with this tack as the way to approach it: "I don't want to add stress or pain, but I want to help protect everyone as much as possible".

I say this as someone who lost my father as a result of a car accident, with the caveat that my father died fairly quickly, and the other person in the accident, who survived with no injuries, was primarily at fault in causing the accident (which she admitted).

Here is my cautionary tale about being careful what you say and who you say it to:
In our case, my sister, who lived close by (I live several states away), was talking to the police who were investigating fairly soon after the accident (before the cause had been determined), when she was pretty near hysterical, and was asking them stuff like if they knew what happened. She was saying things like "Do you think Dad could have had a heart attack?" [this was a no, we found out via the autopsy], and she was mentioning his COPD, etc., etc. just human stuff you do when you are in shock. The police in this small town, who do not have a lot of experience dealing with fatal accidents, put a bunch of her emotional mumblings almost verbatim in the official police report on the accident, and the lawyer for the other person in the accident, and that person's auto insurance company lawyers, then tried to use the stuff my sister said to weasel out of paying the modest compensation our lawyer was asking for.
posted by gudrun at 7:53 PM on July 17, 2018 [12 favorites]

You say "injured in an accident" -- what sort of accident? I'm imagining an auto accident, with your relative driving? If that's the scenario, your relative probably needs not 1 but 2 lawyers: a civil attorney to defend a case that the injured parties may bring against your relative for damages; and a criminal defense attorney to defend against any criminal charges that the police may bring against your relative (were tickets issued?). It's not certain that both of these things will happen (civil lawsuit by other injured parties for damages, and criminal charges against your relative), but they may, given the circumstances, and they would generally be handled by different attorneys.

If this is an auto accident, one of the very first things that needs to be done is to notify your relative's insurance company of the occurrence of the accident. In most cases, the insurance company will assign an attorney to defend the civil case, assuming there is insurance coverage.

The less your relative says about the facts of the accident, the better. One important exception: if your relative does have relevant insurance coverage, they are obliged by the terms of the policy to cooperate with their insurance company by giving a statement to the insurance company's investigator.
posted by Corvid at 8:10 PM on July 17, 2018 [4 favorites]

Looks like you're getting good input here.

If you want more input, you might query on Reddit Legal Advice. It's a well-moderated forum. They will most certainly tell you to get an attorney now.

IMO, it's not too soon to broach the topic with close family. The sooner the better. (IANAL)
posted by valannc at 8:10 PM on July 17, 2018

This is probably cold comfort indeed, but it's likely that they will either not remember the exact circumstances of the crash or have a completely, conspicuously disordered recollection of it of no evidentiary value, and probably won't wake up and immediately recall with any clarity their role to whoever's listening. Short-term amnesia is a very common side effect of serious trauma. That said, yeah, the relatives should be getting their ducks in a row on the lawyer front. They don't need a lawyer sitting in the room waiting for them to be lucid, but they do want one on call.
posted by jackbishop at 8:20 PM on July 17, 2018 [2 favorites]

They don’t need a lawyer in the room at all times, but the relatives do need to control who the person talks to without a lawyer present. In a completely different situation, I was shocked to see my elderly relative’s beliefs due to dementia-caused paranoia treated as objective truth in a guardianship case in court.
posted by FencingGal at 8:36 PM on July 17, 2018 [5 favorites]

Could something someone says after they've suffered a traumatic brain injury and been in a coma be used against them? (Because wouldn't that information be unreliable?)

I'm not a lawyer, and I can't definitively answer this question. I can tell you that the rules of evidence vary by state, and a lot of decisions that judges make about evidence are fact-specific and subjective. There is not, to my knowledge, any particular obvious or universal legal principle that would necessarily exclude from evidence something someone says after suffering a traumatic brain injury. Often (but not always), the reliability or significance of a given piece of evidence is left for a jury to decide.

That doesn't mean that anything and everything said by this family member will necessarily become evidence against him or her, just that the TBI and coma do not, as far as I am aware, necessarily preclude the use of your relative's statements in criminal or civil proceedings.
posted by Rock 'em Sock 'em at 8:40 PM on July 17, 2018

I would speak to a lawyer generally right now, because there's going to be an unknown amount of time between "theoretically lucid" and "ought to be talking to anybody" and it will be exploited by law enforcement. You and their closest relative/power of attorney need to know the magic words to stop that from happening, and how to manage the situation.
posted by Lyn Never at 9:41 PM on July 17, 2018

The "magic words" are pretty much "he has a lawyer" - so long as that is true.
posted by uncaken at 11:45 PM on July 17, 2018

Rather than just saying “hey you should get a lawyer”, give information on *how* to do so. The mefi how to get a lawyer from the wiki would be a good place to start.

You could also offer to do some of the initial screening yourself, and provide them with a list of a few names or even a few pre-arranged appointments so their task of getting a lawyer is less burdensome.
posted by nat at 1:24 AM on July 18, 2018 [4 favorites]

I don’t know about the legalities, but the only portions of my just-woke-up-at-hospital mumblings that were recorded in a police report were part of a relatively formal interview conducted by an officer at my bedside. I was a passenger, though, not the driver.
posted by samthemander at 7:47 AM on July 18, 2018

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