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By Barbara Haubrich-Hass, ACP/CAS August 3, 2011

It is important to memorialize the sequence of events in any given incident. One way to accomplish this is to obtain statements from the percipient witnesses. Nailing down a witness version of how an incident occurred early in a case can be one of the most important components of a thorough investigation. A paralegal should not determine which witness to statementize; that is a decision for the attorney to make. It is also up to the attorney to decide who conducts the interview with the witness. It is best if the attorney conducts the witness statement so that the attorney understands the facts of the case, obtains all of the information needed from the witness, and can evaluate the overall credibility of the witness. However, some attorneys have their paralegal conduct the witness statements, while other attorneys hire investigators to conduct the witness statements. At a minimum, paralegals play a big role in locating the witnesses, setting up the interviews, and obtaining the physical evidence for the attorney to use to conduct the interviews. In the Pre-litigation stage of a case, an attorney cannot compel a witness to give a statement. When a witness refuses to provide a statement, then the statement will have to wait until litigation has commenced. The witness can then be compelled to testify at a deposition through the use of a deposition subpoena. A. Preparing for the Interview

Knowing what information you want to obtain from the witness is the first step in preparing for the interview. Prior to the interview, review the evidentiary documentation in the file so that you have an understanding of the dynamics of the case, and how the witness fits in with the case scenario. It may be necessary to obtain additional documentary evidence before the witness statement is obtained. B. Types of Statements

Witness statements can be written or recorded. A written statement is obtained in person as the questions and answers are written down by the interviewer. When the statement is

concluded, the statement is either provided in handwritten form to the witness to review and sign; or the statement is typed and then provided to the witness to review and sign. Either way, before the witness dates and signs the statement, it is important to ask the witness to review the statement for any corrections. A recorded statement is obtained either in person, over the telephone, or by other audio or video means. This method is particularly helpful in obtaining long distance witness statements that you otherwise may not be able to secure. At the beginning and end of every recorded statement, it is extremely important for the interviewer to have the witness acknowledge that he or she understands that the statement is being recorded and to grant permission for the statement to be recorded. In order to lessen the likelihood that a witness statement may be discoverable in litigation, it is good practice to insert a sentence at the end of the written or recorded statement, as follows:

This witness statement was taken by an attorney. It contains the responses of the witness to questions formulated by the attorney based upon the attorneys legal analysis, and reflects the impressions, conclusions, opinions, legal research, and theories of the attorney. This document is protected by the attorney work product doctrine.


Types of Witnesses

For purposes of this article, an attorney is interested in obtaining statements from percipient witnesses (aka eye witnesses). However, there are other types of witnesses, such as character witnesses, lay witnesses, and expert witnesses that will not be discussed in this article as those witnesses do not fundamentally fit the criteria of this article. Within the scope of percipient witnesses, there are friendly witnesses and hostile witnesses. A friendly witness is someone who is favorable to your side of the case and is a cooperative witness. In contrast, a hostile witness is someone who is against your side of the case and is adverse to your clients interests. Generally, attorneys do not want to statementize hostile witnesses.


Interviewing Techniques

When you begin an interview, it is helpful to try to put the witness at ease as soon as possible. Be sure to avoid using legalese that will not be understood by the witness. In fact, following the KISS philosophy (keep it simple, stupid) applies to taking a witness statement. Try to remain impartial when taking a statement; you are simply gathering facts. It is helpful to Use questioning styles throughout the interview. There are five basic styles of questions when conducting an interview. Each type of question has a different purpose for obtaining the information that is desired from the witness. 1. Open-Ended Questions: An open-ended question allows the witness to provide a narrative response and is designed to pull in a wide-range of information. Open-ended questions allow the witness to have control over how much information to provide, and is useful in discovering the extent of knowledge that the witness has in response to the question. Generally, open-ended questions start with what, how, or why. Examples of open-ended questions include:

How did the incident occur? What happened next? What were you doing just before the incident occurred? Why were you at the location of the incident?

2. Closed-Ended Questions: A closed-ended question will require a one or two word response. You would use a closedended question to narrow the focus of the answers, and to pin the person into making a definite comment or conclusion. Examples of closed-ended questions include:

What time did the incident occur? Was the traffic light red, green, or yellow? What is your age? What is your date of birth?

3. Specific Questions: A specific question is a question that asks for more information on a particular topic that was raised in a prior answer. These questions focus on a particular element that the interviewer needs to narrow down. Examples of directed questions include:

How long was the traffic light red when you were stopped at the intersection? Describe the weather conditions at the time of the incident.

4. Reflecting Back Questions: Reflecting back questions ask for confirmation from the witness that the interviewer understood the answer. These questions solicit correction or clarity to prior answers, and help ensure accuracy of the information provided. An example of a reflecting back question includes:

If I understood you correctly, you were driving northbound on South H Street, turned right on Cummings Corner, and then proceeded westbound for approximately ten minutes when the accident occurred. Is that correct?

5. Concluding Questions: Concluding questions are the questions at the conclusion of the statement and ask whether there is any other information that the witness can provide or has not disclosed about the incident. An example of a concluding question includes:

Is there anything else that you would like to add?


Information to Elicit from the Witness

If you are a paralegal who is asked to conduct an interview by your attorney, you should first use a checklist approved by your supervising attorney to ensure that you do not skip over information that may be needed. However, never allow a checklist to limit your questions. Follow-up questions outside of the checklist will most likely be necessary. Initially, focus on the fundamentals of when, what, where, how, and who was involved. Remember that the purpose of a statement is to obtain factual information, not opinions or hearsay conversation. If the statement is obtained in person, it is helpful if the witness provides a diagram of what he or she saw. There is no set rule that will apply to every witness statement. The information to be obtained will vary from witness to witness. However, there are fundamental questions that you will want answered from every witness, as follows: 1. The date, time, and location where the statement is being taken. 2. The name of the interviewer taking the statement. 3. If applicable, acknowledgement that the witness understands that the statement is being recorded and that the interviewer has permission for the statement to be recorded. 4. The witnesses full legal name, date of birth, marital status, spouses name, drivers license number, social security number, current telephone and cellular numbers, current address, and occupation. In the event the witness moves or changes telephone numbers, this information will be extremely valuable in locating the witness for future testimony. 5. The date and time of the incident. 6. Where the witness was when the incident occurred. 7. Identify the location of the witness in relation to the incident. 8. A description of what was witnessed. 9. Why was the witness there, and was the witness alone? 10. If applicable, a diagram of what was witnessed. 11. A description of the surrounding conditions, such as weather, lighting, and roadway conditions. 12. The nature of any injuries to the claimant that the witness may have seen. 13. The nature of any property damage to the vehicles that the witness may have seen. 14. Did the witness give a witness statement to anyone else? 15. Were there any other witnesses at the scene that the witness could identify?



Once the witness statement is completed, it is good practice to provide the attorney with a summary of the witness statement, along with an opinion as to the credibility of the witness.

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Copyright 2011 All Rights Reserved DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this newsletter may be linked.