October 19, 2012
You are sitting down across a table from a potentially important fact witness. How should you begin the witness interview? What type of questioning technique should you employ? Let’s consider some different circumstances and issues. As a starting matter, it is generally a good idea to again explain who you are, who you represent and what is happening that necessitates an interview–that there is a lawsuit pending between your client and the opponent concerning a certain event or dispute. This is not only ethical but it helps to avoid a claim later on by the witness that you tricked them into saying something that was not true. Explain why you believe the witness might have knowledge concerning this event as this will encourage the witness to speak instead of claiming ignorance or feeling like they have nothing important to say.
Most witnesses psychologically like the idea of being useful to one side or the other. Finally, before you begin your questions it is often useful to explain to the witness your side’s perspective on the dispute. Offering your “spin” first can be a very useful way to influence how the witness recalls the event. People often have a desire to please others at a subconscious level. If the witness understands that your client believes the opposing party was driving “recklessly”, was speeding, or was deceitful in a transaction, the witness’ recollection will be more likely to be consistent with your client’s perspective. This technique, of course, is not guaranteed to lead to only favorable testimony but it can frequently help shade the facts toward your client’s position when those facts are in a gray area to begin with. This technique should also be distinguished from telling the witness what to say or trying to distort their testimony–practices that are questionable at best and not fruitful in the long run.
Beginning the Witness Interview:
Introduce self, explain your role
Tell witness why you have contacted them
Let the witness know why you think they can “help”
Decide whether or not to explain your side of the case before interviewing
Choose your questioning
Once you are done with your preliminary statements, often the best technique is to begin with open-ended questions to elicit the witness’ basic memory of the incident and then to follow up with more directed or even leading questions to seek clarification and to refine the witness’ position clearly. In our next post we will discuss some fundamental questioning techniques that will empower you to perform excellent witness interviews.