2.4 Barriers

In this case, you are arguably dealing with the client’s agent. Again, conflict of interest raises its head. While joint representation is often pursued in these cases, it is important to ask up front whether it makes sense for the broker and the carrier to be represented by the same law firm.

While separate representation raises the possibility of finger pointing, joint defenses also raise some difficult conflicts between individual partners and the organization as a whole. The choice is often left to the client, but the professional responsibility codes also suggest that the lawyer first “reasonably conclude” that the parties are not in an actual conflict. If the lawyer can not reasonably conclude that the broker and the carrier are not in actual conflict, then joint representation should not even be attempted.

Even if the parties are in a potential conflict that has been disclosed and waived, there still might be instances when the potential conflict becomes actual, and the lawyer is forced to withdraw. If the lawyer at all suspects that she will inevitably be forced to withdraw from the case, joint representation should not be considered even from the start.

So joint representation is possible, assuming the lawyer has disclosed the conflict to the broker and the insurer and as long as the lawyer remains aware of the possibility that withdrawal may be required down the line. The lawyer should also realize his interest or bias may cause him to not pursue evidence that puts him into an actual conflict. The lawyer’s bias can create an impediment to uncovering damaging testimony. 2.4.1 Role Expectations

The witness may be inhibited by his understanding of what behavior is appropriate within certain relationships. Just as you act certain ways toward your parents, in-laws, teachers, or new acquaintances, the witness might feel and say different things to you because of who you are, and vice-versa.

While rapport building might be necessary for frank disclosure, the associate might feel that the VP thinks the associate is wasting his time with chit-chat. An especially cost-conscious client may feel this way. The associate may feel forced to sacrifice frankness and rapport, for time savings. Unfortunately, this can compound the costs in defending the lawsuit by having to return to the VP to clear up the lawyer’s understanding of the case.

Better to make your reasoning explicit as to why you are requiring a block of the VP’s time. Tell the VP that if you are to play on the same team, you must understand how he thinks (thought), and feels (felt), about the events relevant to the case. Tell him you have been diligent in seeking out the information from other sources, but that only he can answer for his thoughts and actions during the relevant time period, and it is his job to do so.

Depending on the witness’s role, the lawyer may be cast in different roles. The lawyer may have to take the listening role in some situations, and the more talkative, apparently controlling, and dominant role with other witnesses. With the stereotypical hesitant witness who is intimidated by your lawyer status, you must work on persuading the witness about his importance to your task.

Two persuasion statements that often help follow.

Describe who you work for, and blame them for having to bother the witness. For example, you might say:

My supervisor sent me to talk to you. He says you know all about how these things work and what happened. I can’t go back to her empty handed or I’m in real trouble. Can you help me out?

Sharing the perspective of an employee that has an employer telling them what to do can build a good bond with the blue-collar witness. And the best part of it is that it is true.

Use a variation of the above with a subtle threat. The technique is called “raising the witness’s expectations.” Remind the witness of his or her position to know the facts. The fact investigator might say to the broker,

Our records show that you were at the meeting and that your job was to help the carrier reach an understanding as to what it was insuring. What did you do to fulfill your responsibilities toward the carrier in that meeting?

In other words, remind the witness that you know they were there as part of their job responsibilities. Your implicit persuasive statement is that you will not accept that they don’t know or don’t remember, because it would not be consistent with the expectations of their employer, you, or themselves in similar circumstances. 2.4.2 Etiquette Barrier

The witness may think that there are certain things that one just does not tell certain other people; that it is not polite to say those things in public. Closely related to etiquette are the witnesses’ motivations to protect the privacy of another person. Witnesses may feel that loyalty demands that they not speak ill of another. For example, this can cause all kinds of problems in an employment sexual harassment case. Employees may not feel that they can talk about other people’s sexual relationships. Managers may be protecting other people’s privacy, including the spouses of those involved. Etiquette may make it very difficult to find out who was sleeping with whom, for how long, and with what motivation.

There is again a short story here that may help make the point. Lawyers for the defendants in the Dalkon Shield cases were often baffled by how the company’s product made it to the market, if it promoted infection like the plaintiffs claimed it did. In investigating the steps defendants’ investigators took in testing the product, they ran into the following repeated behavior: Someone would ask about the testing done on the Dalkon Shield.

Whether in domestic or commercial disputes, the motivations of the parties and their behavior often raise subjects in conversations that require the lawyer to look impolite, or impolitic, to pursue them. Yet it is the job of the fact investigator to learn how to professionally pursue the answers to these impolite questions. The fact investigator must learn how to stay serious and focused on the subject matter at hand.

“How many employees did you sleep with, Ms. Manager?” “What were their names?” “When did you sleep with them?” “How long after having sexual intercourse with Mr. X did he stop working for you?” Tone, demeanor, and seriousness of purpose all contribute to success in fact investigation. And it is necessary that they be virtues and behavior you choose to evidence, long before you are responsible for actually asking the questions. In addition, the lawyer should state that he doesn’t mean to pry, and empathize with the intrusive nature of the questions, but the need to prepare and defend make it the lawyer’s job to pursue these lines of inquiry.

2.4.3 Trauma

The witness’s answer to your questions may evoke unpleasant memories. They may experience a certain amount of trauma in remembering what happened. If the witness saw the accident, knew the deceased, or helped get a person fired, it may be hard to get a clear understanding of what the witness knows because of all he was (and is) feeling.

One of the major techniques for dealing with trauma is counter intuitive. Many of us feel very uncomfortable and out of control when we see someone else lose control of his emotions. But in the context of an interview, instead of running from or suppressing these strong emotions, it is sometimes much better to get the witness to express them.

Sometimes the witness does not have the energy to summon up the detailed answer you are looking for because the witness simply does not see how the detail is relevant. The witness may think that there is nothing wrong with dumping used oil down the drain; that it’s done all the time. Why should she mention it during an environmental audit? The witness is not trying to be evasive, lie, or hide something from the lawyer. She just doesn’t know how it is relevant.

Remember that lawyers have an expanded sense of relevance (and plaintiff’s lawyers, in particular, of behavior indicators and of causation) that the witness may not share. By using time lines and expectation, the lawyer can start to overcome a witness’s feelings of perceived irrelevance. If the lawyer takes the time to tell the witness of his or her need for all the data, the importance that the witness be clear and precise (because the lawyer need deal in a world of proof, where he or she isn’t the focus of persuasion, but rather another audience), often he can motivate the witness inhibited by the witness’s perceptions of what is relevant. 2.4.5 Greater Need

The witness may have a greater need to talk about some other subject than the one on the questioning lawyer’s mind at the time. This greater need can also affect the listening skills and the energy level the witness is using to summon up answers to the lawyer’s questions.

Again, lawyers need to be able to draw out these greater needs for the sake of both understanding the witness’s perspectives, and to help the witness become more exact, precise, and objective about what she knows. Active listening, empathy, (not fake sympathy, but a genuine understanding of the witness position) and reflection of feelings should provide the “emotional deck clearing” that the witness needs, in order to focus more completely on providing the lawyer with information about what happened. 2.4.6 Time and Money

The witness could have concerns about his time and the cost of getting involved. He might feel he is unable to afford the time off work if he is to become involved as a witness. He may have childcare concerns or other family priorities that interfere with giving the lawyer the time it takes to remember with precision, what he knows. These are legitimate and important concerns that may have to be addressed with sensitivity and planning, in order to overcome the resistance that these inhibitions engender. 2.4.7 Forgetting

It may seem obvious, but memories fade and witnesses forget. To the lawyer who has lived with a case day-in and day-out for months, at times this fact is hard to remember. Many lawyers may take the witness’s hesitation as evasiveness or cooperation with the other side. It is often neither, but is just a simple failing of memory, and a witness’s concern that she will make a mistake. In fact, in reviewing of hundreds of lawyers’ and law students’ interviews, this seems to be a prevalent mistake. Often the lawyer misreads the witness’s hesitation as evasiveness and goes on the attack. The lawyer then threatens or cajoles, and ends up making the witness even more confused and uncertain, and additionally defensive and in no mood to cooperate.