Last time, we went over how to set up and get ready for an interview of a fact witness. Now we get to the main event.
These tips apply mainly in the context of gathering information about who knows what and who will make a credible witness for the trier of fact. But you may find some of them useful in other situations as well.
Starting with the easy stuff
- Begin the interview by identifying yourself, offering the witness your business card, and briefly explaining who you represent and giving a basic overview of the dispute.
- Make clear that you do not represent the witness personally.
- Don't promise confidentiality unless you know you can deliver on the promise.
- Make sure you give an accurate case description that stresses the strengths of your client’s position.
- Ask the witness for permission to take notes.
- Also request permission to take the witness’s photo with your smartphone or tablet. (Don't forget to take the picture!)
- Orally outline what you plan to cover, explaining that you will begin with basic background and then will move to work history and then the witness’s involvement with the parties and the subject matter of the dispute.
- Ask where the witness came from, grew up, and went to high school and when the witness graduated; how many brothers and sisters the witness has and the age differences between or among the siblings; where and when the witness went to college and what the witness studied; and where and when the witness worked after graduating high school, college, or business/law/medical/other school. Do not rush over these questions; the questions deal with familiar territory and the witness’s favorite subject (himself or herself), and the answers will give you insights about the witness while helping you develop a rapport with the witness.
- Keep a professional and cordial tone; avoid making personal or critical comments about others.
Getting to the merits
- Say that now you want to talk about the witness’s involvement with your client, the opposing party, and the subject matter of the dispute.
- Ask the witness to describe her or his first contact with each of those; and, for each, get a chronological description of the witness’s history from that first contact to now.
- Use documents sparingly, mainly to refresh memory or frame a subject that you want to know about.
- Take notes in as much detail as you can, but don’t let note-taking cause you to lose rapport with the witness.
- Say that you have finished with the questions you have for now.
- Explain that either side in the dispute may want to subpoena documents from the witness, take the witness’s deposition, or call the witness to testify at trial.
- Ask the witness whether you can get back in touch if you have any further questions.
- Offer to answer any questions the witness may have.
- Thank the witness for the time.
- Within 24 hours, edit your interview notes, attach the photo, and send a copy of the notes-plus-photo to trial team members.
- Update the Cast of Characters and the Chronology to reflect the new info you obtained from the interview.
- Provide the witness’s contact into to the paralegal.
- Send the witness an email briefly expressing thanks for meeting with you and encouraging the witness to contact you with any questions.