Tips for Lawyers for Using Defendant Conversations and Signed Statements

If you plan to use a cassette recorder to tape witness’ statements directly from the telephone, make sure you carefully follow a few important rules:

1. Use only the best telephones and recorders your firm can afford. A good speaker phone helps you understand the witness and vice versa. Many of the inferior ones sound as though you're both talking from inside a cave. Choose a high-quality recorder specifically made for dictation. Clear tapes help the person transcribing the tapes (or you) understand the entire conversation on both sides. Remember to speak slowly and clearly into the tape.


2. Ask the witness before you start taping if it's acceptable to tape the conversation. If he or she says "yes," tell the witness you're going to put on the speaker phone and ask again for permission to record.

3. Using the speaker phone, start your recorder and document the date and time, e.g., "This is Paralegal Jones on February 22, 20012, approximately 5:00 p.m. I'm speaking with Mr. John Smith. Can you hear me okay, Mr. Smith?" Wait for Mr. Smith's affirmative reply before you proceed.

4. Ask the witness, "Is it okay with you if I tape-record our conversation?" and then wait for his or her affirmative reply.

5. Begin the interview by reviewing the facts surrounding the case. "As I understand it, Mr. Smith, you witnessed an accident on January 25th, 1992, involving a blue Ford truck and a white Chevy Nova, at the intersection of Grape and Maple Streets, at around 3:00 p.m. in the afternoon. Is that correct?"

6. Wait for the witness to answer, in case he or she makes any corrections in your information. Not surprisingly, witnesses often know more about the incident than the client because they weren't caught up in the moment or overcome by stress, injury, or other debilitating factors.

7. Let the interview go along relatively uninterrupted. In most instances, once the witness gets rolling, your part of the conversation will consist of brief questions that verify specific points and help the witness stay on track about the case.

8. Stay in control of the interview. Don't let the witness go off on a tangent, talking about issues that don't relate to the case.

Taking a personal injury car-accident example, let's create a line of questioning for you to follow should you need to interview a witness to your client's case. Client statements tend to be quite similar, so you can follow the client question format without much revision. Witness statements, on the other hand, tend to be unique. You have to formulate the questions as they arise and let the story flow. Make sure you do the following:

1. Ask the witness to be as specific as possible about the time of the accident. Some crashes occur right at daybreak or dusk, and the use or non-use of headlights may be a notable visibility factor for each party.

2. Get all available personal information from each witness, including home and business addresses, home and business phone numbers, date of birth, driver's license number. Social Security number, etc. You or an investigator hired by your firm may need to find these witnesses a number of years after the original crash.

3. Ask what happened to each car after the crash. Whose car was towed and why?

4. Ask if the witness knows the actual posted speed limit for the street in question. Insurance people and opposing attorneys can have a field day arguing over speed limits. Can the witness pinpoint the location of the controlling speed limit sign?

5. Ask the witness about the location and extent of damage (none, minor, major, totaled) to each car. Could there have been old damage someone might try to pawn off as fresh? Does the damage done to each car seem to match what happened in the accident?

6. Ask the witness to describe the surrounding area, including the position of the traffic signals, the size and shape of the lanes, the width of the intersections-especially if they're offset-and the type of lane dividers (dots, painted lines, concrete barriers, etc.). Ask if either driver crossed a simulated island before the crash, drove in the bike lane or across construction barricades, etc.

7. Ask the witness if he or she remembers the position and use of safety belts or helmets for all passengers and injured parties. Some people can recall who was wearing a seat belt and who was not and will tell you if you ask. Pinpoint who was sitting in which seat in all vehicles involved. This will prevent a nasty version of "musical chairs" later in court, where one person says HE was in the front seat and another person swears HE was, with no one to corroborate either side.

8. Does the witness remember noticing (before the crash) any vehicle defects that may have influenced the crash, e.g., no front headlights, wipers, turn signals, or a badly cracked windshield, that may have had an impact on the cause of the accident?

9. Ask about the weather, road conditions, and lighting at the time of the crash. Have the witness describe how heavy the fog was or how hard it was raining. Ask if there were any obstructions in the road. This information can go a long way towards affixing the final blame for the accident later on.

10. Ask if the witness recalls if all the traffic signals were working at the time of the crash. Sometimes out of the blue, the witness will say, "Oh, no. That signal breaks down all the time. City maintenance crews were working on it a week before the accident." This line of questioning may help to establish the credibility of your witness. The city should have maintenance records for the area and you might want to subpoena this information for a deposition or trial.

11. See if the witness remembers anything about the sobriety of each driver or injured passengers or pedestrians. This can help (or hurt) your case, especially if the other driver was arrested for driving under the influence.

12. Ask the witness if he or she remembers any injuries or com plaints of pain from all parties. Specify who complained of stiff necks, shoulders, and backs, or had bruising injuries, and which car they were in. This verification may prevent "phantom" in juries from appearing months after the accident.

Finally, ask the witness to review the actions and reactions of all witnesses, and the actions and reactions of any other participants in the case, like the police or the defendant. Many times witnesses hear one driver or the other, or the police, make statements that can help or hurt the client's case. Better to hear these sooner rather than later in court.

When you finish the tape-recorded interview, tell the witness, "Okay, Mr. Smith, I’m going to stop the tape now. Are there any subjects I missed or is there anything else you want to add before I stop the tape?"

If the witness wants to add more, continue the interview and repeat the closing statement again. If not, end the interview by inserting the perjury statement; "Do you declare under penalty of per jury and under the laws of (your state) that the statement you just gave me is true and correct to the best of your knowledge?"

Once the witness answers positively, end the interview by saying, "It's now approximately X o'clock. I'm going to stop the tape." Always thank your witnesses again for their participation and add that you'll be sending a typed copy of the conversation to review, sign, and return to you. After you’ve transcribed the conversation, mail the witness his or her statement to sign and include a self-addressed stamped envelope for his or her convenience.

Defendant Conversations

What about trying to talk with the defendant in the case? Frankly, your chances of talking with the defendant in a civil or criminal case are quite slim. Most people follow the instructions of their insurance company or attorney, who tells them, "DON'T talk to anyone but me about the case."

However, the old saying "It never hurts to ask" may apply in some unique cases. I've talked to the defendant in several important cases and learned information that saved my attorney considerable time, expense, and effort. Who knows what will happen? You may find out that your client is not being truthful; this is definitely information you'll want to pass on to your attorney.

If you do decide to talk with the defendant in a case, DO NOT use false pretenses to worm your way into a conversation. Besides being unethical, in most states it's illegal as well. Never say you're anyone other then yourself. You could find yourself in an embarrassing situation if your attempt at skullduggery gets discovered. The potential looms for a large malpractice suit against your firm (naming you as the defendant), fines, a possible jail sentence, and most assuredly, termination from your job.

If you decide you want to contact defendants in a case, follow the same rules as with other case participants and witnesses: Get to them first and be polite. They may want to tell you their side of the story even when they know you work for the other side. Offer them the chance to "set the record straight" and respectfully ask for their permission to tape-record the conversation.

Interviewing defendants can be hazardous. Once they realize what they have said and to whom, most defendants will swear you tricked them and say they didn't know who they were talking to or why.

They will swear their statement is inaccurate, misquoted, or worse, completely fabricated by you. Tread lightly in this area. If you don't feel comfortable contacting the defendant in a case, don't do it. If you can reach a defendant before he or she has been advised to be quiet, you may get some valuable information. If not, don't press the issue; concentrate on helping your case with good client and witness interviews.

Signed Statements

The old saying about something "not being worth the paper it's printed on" certainly holds true for witness (and defendant) statements. An unsigned statement probably won't hold up in any court-related hearing. Without a signature at the bottom, with acknowledgment that the statement was made under penalty of perjury, a statement takes on a contrived, even duplicitous look. Strive to get all of your statements signed by every person you interview.

Once you’ve transcribed your statements, repeat the "penalty of perjury" paragraph at the end and leave room for the signature and date. Always provide a self-addressed, stamped envelope when you mail a statement to someone. Make it easy for respondents to cooper ate with you. Would you be in a hurry to send something back to a law office if you had to hunt for an envelope, the address, and a stamp? Probably not. Offer maximum courtesy to others, and you'll almost always get your statements back signed and on time.

On those rare occasions in which you've taken a statement and not received the signed reply, wait at least seven days before calling the person again. Identify yourself first and ask politely if he or she received the statement you sent. In some cases, the person has misplaced the form, and you must send a duplicate. In other cases, the individual has neglected to mail it, and needs a little prodding to review it and send it back.

Sometimes, however, a person will have second thoughts after reviewing the statement and not want to return it. This reluctance may stem from a sense of uneasiness about having gotten involved in the case in the first place or from a mistaken fear about being dragged into court over the matter. He or she may also have received "helpful" but wrong advice from friends or colleagues about signing anything that looks legal.

If you have witnesses who balk about signing their statements, explain to them that in many cases, a signed statement takes the place of the witness in a court hearing. By signing the statements, they may be able to avoid any other participation in the case. Suggest that if they don't want to sign their statements, they may then have to appear at a hearing to verify what they said on tape.

In those rare instances where a witness persistently refuses to sign, you can't do much except save the tape as evidence of the conversation and proceed with the case. You may be able to subpoena the witness later and use the taped statement as a refresher for him or her.

Some people will flatly tell you they do not want to give a taped statement about the incident. If you feel you have some rapport with them, you might try suggesting an alternative to the taped statement: the question and answer sheet. Tell the witness you'll send a prepared questionnaire form, and all he or she will need is to write down the answers, sign the bottom and mail it back to you. If the witness agrees to this format you can use the questionnaire as your ace in the hole. Why? Because you can create the questionnaire to fit the client's case.

Instead of using a "one size fits all" questionnaire, write yours to match the type of case. For a car-accident case, you might want to use the opening paragraph to give the facts, i.e., date, time, location, drivers' names, and types of cars. By labeling each participant with his or her vehicle, you can create a questionnaire based on the movements of the cars. "Which direction was the blue Ford going?,” "Which direction was the white Chevy going?," "Where did the blue Ford hit the white Chevy?" etc.

If your firm specializes in personal injury car-accident cases, you can create a "boilerplate" questionnaire by using your computer's word processor, changing the streets, times, and cars as necessary. Some people feel more comfortable with pre-printed forms on which they can write their own responses, draw diagrams if necessary, and generally choose their words and thoughts more carefully. Remember to include a self-addressed, stamped envelope to speed the reply back to you.

Since any taped statements you take have evidentiary value, you'll need to establish a storage system to protect the actual tapes. Since the signed statement will usually go straight into the client's file, you can place the cassette tape (one statement per tape) in a sealed envelope, mark it with the date, time, client's name, and witness name, and attach it securely to the file. Or you can set aside one lockable file cabinet drawer as an evidence bin, filing the sealed tape envelopes by the client's name. The choice depends upon the size of the office and the number of tapes you plan to collect.

No matter whom you interview-clients, witnesses, defendants, other case participants-be professional in all you do. A confident, mature attitude and the desire to build rapport and actively listen to the other person can go a long way towards learning the truth.