SHOULD YOU INTERVIEW THE WITNESS?

August 27, 2012

Interviewing witnesses may be the single most important type of informal discovery you ever perform. It exposes possible trial testimony, helps to locate and identify additional document sources, provides elaboration or corroboration for the client’s story, disclosing harmful information that will need to be dealt with, reveals additional potential parties, and helps to show other causes of action, defenses, or informing your analysis of possible damages.

Remember, “Ignorance is not bliss” in pretrial advocacy; rather, ignorance is a terrific thing for embarrassing the lawyer or their client and causing a case to be lost. With all of the good to be accomplished through witness interviews–or the bad to avoid– you should plan to interview, within the constraints of your budget and the goals of your client.

You can approach this decision in two ways.  You can focus on which witness you choose to interview and in what order, or do you focus on when in the process you interview – for example before or after filing the lawsuit?  The answer is, of course, it depends, upon the reasons for the interview.

For example, if you are trying to tie down witnesses with commitments that will hold up, you might press forward instead of waiting.  You could interview them, but do it over the telephone in a few minutes to get the thrust of their recollection and to let them know that you might need to visit with them again in more detail in the future should the “defendant choose to lie” and recant his original admissions. This approach gives you greater confidence that the merits of your lawsuit will be good when you file it, it reinforces the witness’ recollection of events, and casts the defendant as the “bad guy” in the litigation – rarely if ever a bad thing.  These are just some of the things you should consider when determining whether and when to interview a fact witness taking into account your client’s budget. All of this must, of course be done professionally.

Different witnesses require different approaches when attempting to schedule an interview.  Willing witnesses are usually not a problem, other than finding a time and place that is convenient for both you and the witness.  Don’t forget – they are not getting paid for their time but you are, in one form or another. You need to make the scheduling of their interview as flexible as possible to accommodate their schedule.  Depending upon the nature of the witness’ job you may have to offer to meet the witness for lunch during the day, for coffee before or after work or sometime on the weekend.  We’ll talk about how to set up that interview next time.