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Interviewing of witness

The assembling of the facts in preparing a case for trial requires skills in
addition to the ability to interpret the law. You should have an
appreciation and understanding of human behaviour. When you are
interviewing a client or witness you should be able to detect, from such
things as demeanor, restlessness, directness or lack of it, tonal variations,
and other signs of emotional expression, whether or not a factual and
complete a story is being told. Skills of understanding human behaviour
are not taught in a law schools. The lawyer who possesses these skills
has, as a general rule, acquire them from the total of his experiences in
dealing with human beings. The lawyer deals with human beings; and
trials are conducted on human testimony. Physical exhibits, such as
contracts, patent drawings, or anything else, are all dependent upon
human testimony and human interpretation, for humans draw the
contracts and make the drawings.
As a result of interviewing your client, you have obtained as complete a
story as he was able to give you, or as you were able to extract from him,
including the names of witnesses on both sides as he could give you
You must conduct your investigation and examine witnesses immediately
after you have interviewed the client. By doing this you will be able to
make a more eff ective selection of the theory of your action, based upon
what you learn of the substantive case and of the thing you have to prove
and your ability or inability to prove them, through those witnesses.
It is common for facts to appear very strange and frequently, standing alone, quite
improbable. In such situations, surrounding circumstances are what make the facts
probable, that is, believable. Bare facts in themselves are not all that you seek from
a witness. You need to know how the witness remembers those facts or why the
facts occurred. When you have that information, check it, if possible, with other
witnesses; check the existence of the surrounding circumstances, for they may be
even more improbable than the fact itself!
Therefore, if you intend to try the case, examine the witnesses yourself, and do it
promptly. Furthermore, and this is one rule to be followed scrupulously, do not
neglect to interview a person because you feel that what he can tell you is not
material, or relevant, or admissible. You never know what facts you will dig up or
what leads you may develop. Interview anybody having the slightest connection
with the case.
Preparing your witnesses for trial is also important. Far enough in advance of trial to
permit deliberation and reflection, and not so far in advance as to cause the witness
to forget your suggestions, you should carefully go over his testimony with each
witness. You should explain to him in laymans language the principle issue of fact

with respect to which he is to testify, for example, negligence. You should let him
know negligence is, perhaps also contributory negligence. If it is a traffic case, you
should refresh his recollection as to the highway code or city ordinance that is
applicable. This, of course, is not to lead him, but orient him as to the significance of
his testimony so he knows in a general way its purpose and therefore, avoid
irrelevancy. It thus helps him also not to overlook the main point of the testimony. If
there are photographs, maps or charts, he should be shown them and should
indicate where he will mark them with respect to position of cars, himself, other
witnesses, or objects. If the evidence be documentary, such as letters, telegrams,
contracts, deeds, he can read them himself, holding them in his own hand as he
would on the witness stand. The same is true of corporation records, books of
account, memoranda of any kind. He should be encouraged to ask questions. He
should then be led over his story, avoiding the leading questions so far as possible,
so that he will tell the story as he will in court. It is often important to explain what a
leading question is and to emphasize that he must tell his own story, least of all to
put words in his mouth. Of course he must not memorize his story because that will
be fatal if he faces an alert cross-examiner.
After explaining why and what you are going to do, you should cross-examine the
witness using both the ruthless or tough style and the unctuous or lead-along style.
It is easy for a lawyer to forget how nervous the witness may be because of
unaccustomed surroundings and perhaps fear of the majesty of the law. If lawyers
are proverbially poor witnesses, what may we expect of layman? It was said of
David Garrick that, accustomed as he was to performing without nervousness
before thousands or persons, he was to nervous to be any good of the witness
If there is more than one witness to the same set of facts, all the witness
should be interviewed at the same time. This will tend to avoid
inconsistencies, will help them to refresh their recollections, and will tend
to give each of them more self-confi dence then if interviewed alone. They
may stimulate each other and be as much help as possible to your client
by testifying as emphatically and clearly as they can.
The easier you make the witness task, the easier you will be able to
conduct the litigation, and the more eff ectively you will be able to present
your fact. By telling the witness many things which he may expect while
on the stand, you may prevent may diffi culties later on. For example, the
attorney on cross-examination frequently asks a witness whether he ever
talked with anyone about the case before the trial, and if so, with whom
and when. This question often confuses the witness, for he thinks it is
wrong to talk over the case before the trial. It is, therefore, well for you,
when you interview your client and witnesses, to tell them that if they are
asked such a question by the other side, they should not become upset,

but should answer the question truthfully; as a matter of fact, tell them
they should answer all questions truthfully.
Also tell your client and witnesses that the other attorney may subject
them to grilling cross-examination, but that they need not have any fear
so long as they are telling the truth; that the attorney may attempt to
discredit their testimony, but that if they are absolutely fair and
unprejudiced there is necessity of worrying; that the attorney may
attempt to impeach them, but this should not cause them to become
alarmed if their characters are irreproachable.
There are many other ways by which an attorney can make a witness
become more eff ective while testifying at the trial. For example, counsel
should tell his witness that if he does not know or does not remember a
certain matter about which he is questioned on direct or crossexamination, he should say so, and not make a guess. Some witnesses are
afraid to say that they do not know or do not remember something, and
by making a guess may injure their side of the case. Point out to the
witness that it is erroneous for him to believe that any answer is better
than no answer, or considered in a bad light because he answers, I don't
know or , I don't remember.
Also tell your witness to be honest and fair at all times, and that if he has
made an error in testifying, and it is called to his attention either by
yourself or by the opposing attorney, he should admit his mistake. It is far
better at admit an error than to insist upon the truth of a matter which is
false or incorrect. Tell the witness not to enter into any arguments with
counsel nor to lose his temper while on the stand, for this will only make
him a less eff ective witness, and will hurt the side for which he is

Knowing your witnesses.

There are several classes of witnesses. We have already spoken of the
fi rst type of witness, that is the client himself. Naturally, being the most
interested of all the witness who will be called, he is likely to have the
greatest bias and if handled properly he is also likely to be the most cooperative of all the witnesses. The second class is the friendly witness,
the person who is pecuniarily interested in the event, or what out of liking
for a party is eager to testify. The third class we have designated is the
willing witness. Such a person is neither hostile, interested nor friendly,
but is willing to tell his story to whomever asks for it. The fourth class we
shall call the adverse witness. That is a person, not a party, who is
unwilling to talk to you and who feels himself to be an ally of your

opponent. In other words, the adverse witness is your opponent's friendly

witness. The fi fth class is designated the hostile witness, which includes
adverse parties.
Friendly witnesses. There is never any guarantee that a witness who is
friendly will remain so and for this reason it is always best to secure their
signed statements. Witnesses who are pecuniarily interested in the event
or who out of liking for a party are eager to testify are almost as prone as
the client himself to be biased in favor of the party calling him.
Often the very fact that a witness is being called upon to help with his
testimony fl atters the witness so that he innocently shades the truth in
his eff ort to be helpful. It is dangerous to pour cold water on such a
witnesss story. He may become sullen and antagonistic, but as a rule if
he is tactfully handled he can be made to see that the strict truth will be
more helpful to your client than what he deems to be the most favorable
As has been suggested, witnesses if they are interested and willing are
prone to exaggerate and to favor the party who calls them. For this reason
in interviewing them it is inadvisable to ask leading questions. It is so
much easier to answer a question in the affi rmative than it is to relate
what has occurred and the desire of the willing witness to help your client
is so great that he will almost certainly fall in with any suggestions you
may make. He may even come to believe as true, a story which you have
suggested to him through your questioning and become an easy target for
skilful cross-examination. This desire of friendly witnesses to be of help
took an extreme form in a case involving property damage to an
automobile caused by a collision. The client referred his attorney to a
friend who owned a garage and service station which had repaired clients
automobile. As an expert witness he was most helpful. He prepared an
itemized list of the repairs which were required and expressed his
willingness to take the stand at any time. A casual glance at the items of
repair indicated that the cost was almost as great as that of a new car. If
the client had in fact expended any such sums in repairs it could only
have been because he had a sentimental attachment for his automobile.
The attorney sent for the witness and questioned him. The garage man
admitted that some of the charges were high but stated that all of the
repairs which he had listed had been done. He was then asked, Do you
think that any of these damages could have been occasioned in another
accident either before or after the one we are suing for? and he
answered, No, I went over the car thoroughly the day before and found it
in perfect condition. The plaintiff drove it out of my garage at ten o clock
the morning of the accident and it was back all smashed up at eleven.
The attorney then asked, Is it true that plaintiff drove it back to your

garage as early as eleven o clock? and he received an affi rmative

answer. Then the attorney queried, How is it that the automobile could
be driven to your garage, a distance of fi ve miles from the accident, with
three blown out tires, a broken rear axle and a broken diff erential, which
you have put in your list of repairs? The garage man looked astonished
and then said, Well, then, maybe you better say that I called for the car
with my repair truck and towed it to the garage. The attorney did not
adopt the garage mans suggestion. He obtained instead a true list of the
repairs which had been done, the cost of which was brought down to
approximately one-third of what has at fi rst been suggested. At the trial
three of the defendants witnesses testifi ed that they saw plaintiff drive
the car away from the scene of the accident. Had his attorney blindly
accepted the garage mans estimate, the defendant would probably have
left the court with a vehicle in his favor, because defendant defendants
attorney would unquestionably have brought out on cross-examination the
same inconsistency which developed on the interview. Had the attorney
followed the garage mans invitation to suborn perjury, that the car was
towed away, he might have found himself facing prosecution for
subornation of perjury.
Willing witness. In the case of willing witnesses are placed all those who are not
hostile, adverse, interested nor friendly. It is usually advantageous, if possible, to
make friendly witnesses out of willing witness, so as to insure their continued cooperation. A willing witness will, for the most part, relate without undue
exaggeration what he actually observed. His story should be taken down in writing
and signed by him, as soon as possibly it can be obtained. Sometimes he may be
unwilling to sign the statement, but you can always suggest that he identify it with
his initials or signature so that he will be able to use it to refresh his recollection in
case his memory thereafter fails him. The very fact that he has been interviewed by
you will tend to make him friendly. Another thing which will help will be a show of
interest, such as advising him from time to time as to the status of the case and
reminding him that you are depending upon his testimony Do not suggest to such a
witness that he should not talk about the case to the other side. He likes to feel
independent, to be assured that he is not your witness but rather an instrument to
be used in obtaining justice. It is also well not to restrict your conversation with such
witness to the particular accident. Talk over general things with him and try to get
an idea of his mode of life, the people with who he associates and whether he has
had any experiences which give him a peculiar bias. In other words, a person whom
you at first thought was a willing witness may actually be a friendly witness and his
recital of what took place may be colored by his experience in some similar
situation. Remember that in order to fall with in the classification of willing
witnesses, a person must be unbiased, he would be qualified to sit as a juror in the
case but for his observation of what actually occurred.

It should be borne in mind that a friendly witness will not necessarily testify on
behalf of your client. He may have formed an opinion as a result of his investigation
that your client is not entitled to prevail, but even though he is likely to be called by
your opponent there is no reason for not interviewing him and obtaining his story.
Such an interview may even convince him that he was mistaken in his observations
and you may also learn that his testimony can be reconciled with your clients story.
Some attorneys have the mistaken idea that it is not unethical to talk to witnesses
who will appear for the other side. Not only is such a practice not unethical, but with
the exception of an adverse party, it is almost a duty to do. As to the ethics of the
situation, witnesses are not pieces of property who belong to either of the parties.
They are not jurors whose views must be kept free from prior knowledge of the
case, in order that they may impartially decide the controversy. A witness who
refuses to talk to you is an adverse witness, unless his refusal is purely arbitrary and
runs to the extent that he will not even permit the other side to interview him, you
safely put him down as an adverse witness who must be investigated very
Adverse witness. Though an adverse witness will not consciously do anything to
help your case, he is not as difficult a subject to investigate as an adverse party.
The very fact that he is not a party to the litigation makes him more prone to talk
unguardedly in the presence of those who are interested in obtaining information for
your side of the case. However the longer one waits to investigate an adverse
witness the less chance will there be of obtaining information. Very early in the case
opposing counsel will warn him not to talk to anyone concerning the matter. After
that he will be more partisan than ever and more guarded. Though a direct
interview may be impossible there is no reason to suppose that they cannot be
investigated to determine what their testimony is likely to be and whether the
stories they will tell have any foundation in fact. In these days people have a very
limited private life. The live in a community that has the opportunity of observing
nearly all their actions. They write letters, they figure in vital statistics which are
open to your search. Their births, marriage and deaths are matters of public
records. If they run afoul of the law, either civilly or criminally, they leave a trail
easy to follow. And so we must consider how such witnesses are to be investigated
and how through such investigation we may obtain evidence to support our case
and to destroy our opponents case.