Interviewing Basics for Paralegals and Clients

Some law firms ask their paralegals to initiate and conduct all witness interviews for accident, criminal, and similar cases. In these instances, you'll want to follow some careful guidelines to avoid any problems later (when they're usually too large to fix). Using paralegals saves money, and many firms like to give their staffs the chance to track the case from start to finish.

Other firms rely on outside or in-house investigators to handle witness statements. You must defer to the wishes of your firm. Good investigators can quickly take a number of witness statements and give you the information within days instead of weeks.


If you're called on to do any witness interviews, you should start by taking a close look at the way you listen to people. While this may sound like teaching the choir to sing, interviewing is a high-skill activity.

For the majority of us, the opposite of talking is not listening, but waiting to talk again. Learn to listen "actively" by paraphrasing what the other person has said and filling in what you don't know, e.g., "Mr. Jones, if I heard you correctly, what you said was . . .

Active Listening
 

1. Be open and receptive with your body language.
2. Hear all of what the other person says before you respond.
3. Don't interrupt or finish sentences for the other person.
4. Interpret the other person's message by listening for feelings as well as facts.
5. Act on what he or she has said.

Before you even start any client or witness interview session, develop your paraphrasing skills.

Paraphrasing, according to "Verbal Judo" seminar leader George Thompson, "is a necessary backup system to communication. It means putting the other person's 'meaning' into your 'words' and then giving it back to him."

This technique of replaying what the other person has said and putting it into your own words can pay powerful dividends during any interview. It will help you build immediate rapport with the person.

Paraphrasing allows you to get the information right the first time.

The other person can correct you if you've made an error, and the paraphrased statement makes him or her feel better because it mirrors what he or she originally said to you.

"It also," says Thompson, "makes the other person a better listener to you. No one will listen harder than to his or her own point of view."

Paraphrasing also has a tendency to create an aura of empathy with your client's case because the person will believe you are really trying to understand what happened.

Witness Interviews

Interviewing witnesses requires the same amount of careful preparation as interviewing clients, if not more so. Make a list of your questions before you begin, focusing on the ones that pertain to the actions of your client and the nature of the case. Try to establish exactly where the witness was and what, if anything, he or she saw your client actually do.

Read over your initial interview with the client to see if there are any discrepancies. In some cases, you'll need to ask the witness to clarify important details the client forgot to tell you. Also review any additional outside information, like police accident or arrest reports, before you begin. Look at photos, diagrams, maps, etc., to get a feel for the case.

A small amount of preparation in the beginning will save time and effort for both you and the witness and will help you get an accurate and complete statement of who did what to whom and why.

The key to any successful witness interview lies in your ability to help the witness paint his or her own word picture of the event in question. Simple "yes" and "no" questions followed by "yes" and "no" answers won't help you very much. Strive to get the most accurate portrayal of the actions and activities that took place.

How much witnesses will tell you depends upon a number of key factors that are usually out of your control, including their eyesight levels; how near or far away they were at the time of the incident; their relationship (if any) with the client or the defendant in the case; their perception of the entire incident as a whole (unconcerned, worried about the client, worried about the defendant); hostility toward anyone involved; and last, but most important, their willingness to get involved in the case.

Some people are naturally gregarious and want to help you in any way they can. Others are more reticent and will only help if gently prodded. Other witnesses can be highly uncooperative and even downright hostile if they do not want to get involved in the matter. But of all the factors that relate to whether or not a witness is helpful to your case, the only one you can control with any certainty is the witness's positive feelings toward you as a person. It only makes sense: people will usually go out of their way to help people they like, and conversely, will not do anything to help people they don't.

Case in point: If you’ve trying to interview a person who witnessed a car accident involving your client and another driver, you can inadvertently alienate him or her with your first (and probably only) phone call.

Before you pick up the telephone to contact a witness, think for a moment about how many other inquiries he or she has probably received prior to your call. Most insurance companies encourage their adjusters to get witness statements immediately. They do this first because fresh information is best and because they want to beat the other side-attorneys, investigators, or paralegals working for the other driver-to the punch.

Fortunately for you, most insurance adjusters are so swamped with cases that they don't always have the time (or energy) to get to your witness. Still, in many cases, by the time the client comes to your law firm and meets with an attorney, several days or even weeks might have passed. Most people are hesitant to go to a personal injury lawyer unless their injuries are severe or a friend or family member encourages them to do so.

If any serious length of time has passed, you can almost bet your witness has been inundated with phone calls by the other driver's insurance company, the other driver's attorney (if one exists), and even the police, if the case is significant enough. And keep in mind that most of these calls have probably interrupted his or her work day or home life. For most people, getting a phone call from an attorney's paralegal, an insurance investigator, or a private investigator during their work day or the dinner hour ranks right up there with calls from people who sell aluminum siding, penny stocks, or tap water purifying systems.

Unfortunately, many people often end up wishing they had not gotten involved in the incident in the first place, and they vow to "see nothing" and offer no help should they ever witness another incident. Telling the same story over and over to six or seven people doesn't make for a fun evening. Keep this in mind if you're asked to interview any witnesses for a case-personal injury, worker's compensation, crime, etc. Concentrate on following two key rules: Get to them first, and be as polite as humanly possible at all times.

In a busy law office, the telephone can be your best information-gathering tool. With some well-placed phone calls, you can take statements, verify information, and generally handle large portions of an entire case without leaving the comfort of your office. Since few witnesses would actually think about journeying to an attorney's office just to give information on behalf of a total stranger, it makes sense to get this information by phone. It keeps scheduling problems to a minimum and offers an efficient communication method for both the interviewer and the witness.

By reaching any potential witnesses before the other side, you reap the obvious advantages of hearing the story first while it's fresh and before any antagonism sets in because the witness has been plagued with so many calls.

The politeness factor is a given. Even the most hardboiled, cranky, and tired-of-telling-it witness will respond if you are polite and professional on the phone. Above all else, be liberal in your use of the phrase "thank you again for helping us get to the bottom of this case." People want to know they're making a contribution and it feeds their egos to think that without them you would be stuck for answers. So make them think their help is invaluable; in many cases it is.

The Important Witness

Review the following car accident personal injury episode and notice the important part played by the witness; About 9:00 one night, Party Three (P-3) is stopped at the limit line of a traffic signal, waiting for her light to turn green. Party Two (P-2) is directly behind her, about one-half car length away. Party One (P-I) is in the lane behind P-2 and not paying much attention to his driving or his rate of speed. He looks up to see P-2's rear bumper a few yards away. He slams on the brakes, skids for a short distance and smacks into the back of P-2's car. P-2 slides forward and crashes into the rear of P-3's bumper.

Each driver gets out to look at the damage, and everyone agrees to pull into a nearby gas station lot to wait for the police. A station employee saw the entire accident from where he stood and agrees to give a witness statement. The police arrive on the scene and, after verifying that no one is injured, begin to interview the participants. This is where the fun starts.

The next morning Party Three wakes up and notices her neck is stiff and sore. Her left shoulder is tender to the touch and she has a slight headache. She has trouble putting her clothes on because of this stiffness. She goes out to her driveway and looks at the back of her car. She sees a good-sized dent in her rear bumper, along with some chrome damage and paint transfer. She goes back into her house and makes two calls: one to her insurance company and one to her attorney.

Party Two wakes up with the same pains in his neck and head. He sees similar damage to his front and rear bumpers, and he makes similar phone calls to his insurance company and attorney.

Party One feels fine except for the hood-bending damage to his car. He makes one phone call: to his insurance company to tell it about his misfortune. However, in this scenario, Party One is already in the high-risk insurance group. He's had several tickets and a few accidents, and his insurance rates are in the upper stratosphere. The version he tells his insurance company differs just a bit from the truth.

In his account of the crash, the SECOND car at the light hit the car ahead of him FIRST; then he came along and just happened to hit the back of the second car. So instead of being on the hook for two smashed cars, he's only admitting to rear-ending the middle one, after it had already hit the car in front.

Parties Two and Three tell their attorneys and insurance companies exactly how the accident happened. P-2 felt two impacts: one for the initial crash and the second after he hit the car ahead of him. P-3 felt one impact when P-2 hit her from behind. But she HEARD the first crash and braced for the impact that followed.

Each attorney and each insurance company requests a copy of the police Traffic Collision report. Once they review it, they discover Mr. Witness working at the gas station near the scene. Immediately, attorneys' paralegals, accident investigators, and insurance adjusters spring into action. Mr. Witness, and his version of the crash, clearly becomes the key to the whole case.

Everyone tracks Mr. Witness to his work and home and interrupts his work and TV time with requests for his version of the facts. He tells the same story all four times. The adjusters, investigators, paralegals, and attorneys then get in line and hammer heavy financial blows down upon devious P-1 and his insurance company.

Therein lies the moral to this tale: A good witness can save a potentially bad case.

What would have been the result of this case had the parties not interviewed the witness? One participant would have surely started a huge shouting match with another. Accusations would have flown from party to party with each insurance company and attorney siding with its client.

Phone Interviews

Good telephone etiquette can make the difference between getting some information from a cooperative, helpful witness and getting no information from an uncooperative, even hostile witness. Try to schedule your calls to the workplace early in the day before witnesses become immersed in their work, immediately after lunch before they begin working again, and between 5:00 and 6:00 p.m. before they sit down to dinner at home. Check that the time is convenient for the witness. If not, make an appointment for a telephone conversation later that same day.

Use the beginning of the phone call to explain politely who you are, where you work, and what information you seek from the witness. Reiterate how important the statement is to you and be sure to be effusive in your thanks. Make witnesses feel useful and helpful by using your active listening skills to the fullest (i.e., wait for them to finish, don't interrupt, make them feel you understand what they said by paraphrasing and repeating it, etc.).

Once the pre-interview conversation is over, make sure you immediately clarify where the witness was standing when the accident happened and more importantly, whether he or she actually saw the accident or merely heard it. This is a critical distinction because only "eyewitnesses" hold up in court or deposition, not "earwitnesses." Here, you'll need to decide how you will document the witness statement. There are a few choices, ranging from the inexpensive and error-prone to the expensive and time-consuming.

The worst way to take a witness statement over the phone (or if by some chance you can encourage the witness to visit your office) is by hand, scribbling down your questions and his or her answers on a legal pad as you go. It's cheap, but it's usually chock-full of omissions, errors, and misstatements.

The only exception to this rule comes into play if you can take excellent, reliable, error-free shorthand. Some paralegals are highly skilled at this nearly lost art and can take down an entire witness statement verbatim. If you aren't that skilled, don't try it. There are few worse feelings in the world than having a witness statement disallowed as evidence in a deposition, hearing, or other court proceeding because it's completely inaccurate.

If you plan to take shorthand notes as you talk, make sure you take the time to get direct quotes from the witness, especially since you'll want the witness to sign a copy of his or her transcribed statement later on.

One key point about taking witness statements in person, either at your office or at an outside location with the witness: make sure you indicate in your notes that at the time of the interview, the witness "spoke good English, understood my questions, and appeared lucid and sober."

This statement will protect you later should the other side seek to discredit the witness for some reason. This frequently comes into play when the witness is not a native English speaker and the other side wants to show that he or she did not understand the questions being asked.

In the majority of cases, you'll probably take witnesses' statements over the phone. The best way to take a phone statement (or even an in-person statement) is to use a tape recorder. In these days of the always-changing, newfangled electronic gadget, it is possible to use a high-quality speaker phone coupled with a microcassette recorder to capture an entire statement with relative ease. Transcribing the statements later using a dictation machine can shave many hours off an otherwise dreary task.

Remember that a transcription does not include every cough, "huh," or "you know." A transcribed statement should look and sounds like a normal conversation with all of the extraneous background noises and remarks taken out

See the following articles for more information:
 

• 21 Major Interview Mistakes to Avoid at All Costs
• The Best Way to Prepare for a Job Search and Interviews
• How to Talk About Other Interviews in Your Interviews
• How to Answer the Tell Me About Yourself Interview Question
• How to Answer the Do You Have Any Questions for Me Interview Question