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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.
Keys to a successful witness interview
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're 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 workday 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 become 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.
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.
Therein lies the moral to this tale: A good witness can save a potentially bad case.
Considering the hypothetical personal injury car-accident, let's create a line of questioning for you to follow should you need to interview a witness to your client's case.
In witness statements make sure you do the following:
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.
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.
Ask what happened to each car after the crash. Whose car was towed and why?
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?
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?
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.
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.
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?
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.
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.
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.
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" injuries 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.
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