October 26, 2012

So it’s time set up and conduct a witness interview.  How to go about it?  Call the witness and explain who you are, who you represent, and the reason for your call–that you have a few questions on some background information pertaining to your client’s case and you would like to meet them at a local café for a cup of coffee to discuss the matter in person.

It is important from an ethical perspective that you not misrepresent your involvement in the case.  You want to act in a manner that will be neither embarrassing nor improper. When others learn of it, and they will, you want it to establish your credibility as an advocate while reinforcing your ethics as a member of the profession.

The witness may suggest just doing the interview over the telephone but normally you should resist this easy way out for three reasons: (1) in-person interviews tend to permit more in-depth questioning; (2) in-person interviews allow you to obtain better information, perhaps by showing photographs, having the witness make a drawing, or simply from the fact that you can make eye contact; and (3) the in-person interview allows you to visualize and then to evaluate the witness as a potential trial witness. You can’t assure the witness that you will be brief but that the questions will be brief and that this is an important matter to your client.  Once the interview is arranged follow through, professionally, competently and timely.

Unwilling witnesses, on the other hand, are more problematic.  How do you go about convincing someone to meet with you for an interview when they are unwilling initially? It depends upon the reason for the witness’ attitude. It may be that the witness identifies strongly with your opposing party and does not want to do anything to help your side. Even if this is true, it does not usually hurt to make an attempt to visit with such a person. You are going to have to deal with them anyway during the litigation, so you should begin early to develop strategies that allow you to approach those whom would rather not be approached. You want honesty and fairness. Everyone will usually promise to be honest and fair, even if they intend to be neither.

Explain that you are just trying to understand what happened to help facilitate a quick resolution of the case; you can even promise that you will not try to get them to change their mind. If this still does not work, do not badger the individual but instead put them high on your deposition list–such a witness is likely to appear at trial for your opponent. Others may not be reluctant due to any strong affiliation with your opponent, but rather may simply be very busy, wary of any lawyers, or anxious about getting involved in a lawsuit and winding up sitting in a courthouse hallway for days during a possible trial. In these instances, your best approach to the witness when they express their initial hesitancy is to advise them that the only alternative to a quick, informal chat is an extended, multiple-hour, on-the-record deposition with a court reporter and other counsel taking turns asking questions. You should try to avoid having this sound like an overt threat–in fact, it merely expresses the reality that before a case goes to trial one of the counsel is likely to want to discover the witness’ knowledge regarding the occurrence. Between these techniques of explanation and willingness to schedule the interview at their convenience, counsel can enjoy much success in obtaining the witness interview.  Of course the hard part comes once you begin to interview.  We will discuss that in the next post.

This post assumes you’ve already determined whether you should interview the witness or not. For more on that topic please review my previous post.