DETERMINING HOW TO QUESTION A WITNESS

October 12, 2012

Advocates interview relevant witnesses for a variety of reasons. The types of questioning techniques used is based in large part upon the reason for the interview. Before beginning to interview all of the relevant witnesses, you should stop for a moment and consider what your actual goals are. Advocates often interview witnesses in order to educate themselves about the facts that they believe are relevant to analyzing the client’s case. When this is your primary objective then it is often a good idea to begin the interview with open-ended questions.

If the advocate only shows up with certain narrow questions to ask, you risk missing out on other valuable information the witness might be prepared to offer. For this reason you should be prepared to linger with the witness for some length of time even if the witness’ initial responses appear to be unhelpful. Remember that you can also use witness interviews to obtain information about other sources of evidence, even from uncooperative witnesses. The witness you are interviewing today might not be very helpful but they may know of another person who has much better knowledge of the facts, and perhaps a more reasonable attitude. If nothing else, your witness interviews should be designed to ask about other sources of proof–other witnesses, documents and tangible items of proof.

Additionally, witness interviews can be useful for limiting or pinning down the particular witness for possible cross-examination at trial. If the witness is unfavorable you will want to spend time focusing upon all of the admissions you can obtain from that witness that demonstrate the lack of import of their observations. Many of the advocacy techniques that we will discuss in the chapter on depositions are applicable during witness interviews. As an advocate you must develop those interviewing skills just as you developed your trial and legal writing skills.

What record should you make of the witness interview? At a minimum, take some notes from the interview, including your impressions of the witness as a possible trial witness, and reduce these to some form of memorandum to put in the case file under the name of that witness. This need not be a grueling drafting exercise–dictating a short list of the top three points from the witness along with a conclusion as to the potential usefulness or harm from the witness’ anticipated testimony should ordinarily suffice in a simple case. These mental impressions are generally shielded from discovery as the attorney’s work product and can be very useful in updating your proof chart, in considering the need for possible deposition of the witness later on, and for preparation of either direct or cross-examination for the witness at trial.

The other major consideration is whether to create some kind of formal witness statement–either an audio or video recording of the interview or a written statement of the witness’ knowledge displayed during the interview. Unlike the attorney’s work product memorandum, these recordings can be obtained by the witness upon request from the advocate and given to whomever the witness wants to share it with. Once the recording or transcription of the witness’ statement is given to the witness, the rules give the witness absolute freedom to share this with anyone, including your adversary. Thus, the downside to these recordings is that they are, in this sense, potentially discoverable. You should assume that will happen when deciding whether or not record them.