Techniques for Questioning Witnesses and Recording Witness Statements for Paralegals

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 sound like a normal conversation with all of the extraneous back ground noises and remarks taken out.

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:
 

• 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.
   
• 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.
   
• Using the speaker phone, start your recorder and document the date and time, e.g., "This is Paralegal Jones on February 22, 2013, 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.
   
• Ask the witness, "Is it okay with you if I tape-record our conversation?" and then wait for his or her affirmative reply.
   
• Begin the interview by reviewing the facts surrounding the case. "As I understand it, Mr. Smith, you witnessed an accident on January 25th, 2013, 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?"
   
• 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.
   
• 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.
   
• 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.

When you finish the tape-recorded interview, tell the witness, "Okay, Mr. Smith, Tm 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 than 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.

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 to is 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.