1.4 Client-Supportive Witness Interviews
There is nothing more important to the lawyer’s dual role of fact investigator and advocate than witness interviewing. It is often the beginning lawyer’s first face-to-face encounter with the adversarial nature of the practice.
Our starting place is a reminder of how uncertain and difficult perception and memory are. It is one of the first lessons taught in many law school classes: How fact witnesses can see things so completely differently from each other, and how even friendly witnesses can come to contradict your client on important issues in the case. The uncertainty and pliability of memory forces the lawyer to again confront his two conflicting roles. Expert handling of the fact witnesses is often crucial to the outcome of the case.One illustration of the importance of witness interviewing arose in a recent exploding rear-end pickup/gas tank case. The defense trial lawyer and his firm were called into the case late, after much of the discovery had been completed. In brainstorming about the case, the defense trial team came to focus on a factual theory: the plaintiff would have died anyway. In other words, they came to want the jury to believe that the plaintiff was killed from the initial collision with the other car and not from the defendant’s design choice in the placement of the gas tank in the rear end of the plaintiff’s pickup. The lead defense lawyer became so attached to the theory that he featured it prominently in his opening statement, saying that while he was sorry for the plaintiff’s death, the design of the truck had nothing to do with it. The plaintiff was killed instantly on impact.
The first witness called by the plaintiff’s counsel was a witness to the accident. After describing the events leading up to impact the plaintiff’s lawyer asked, “Then what happened immediately after impact?” Answer. “I saw the truck become engulfed in flames, which spread almost immediately into the driver’s compartment.
Then I saw the plaintiff struggling to control the vehicle, and steer it over to the side of the road.”Of course, at this point the defendant’s factual theory was not worth much, and the defendant’s credibility would never recover. The problem is that the defendant had a factual theory that went too far, and that was not verified by one of the key eyewitnesses in the case. The defendant’s advocacy story-telling role had become too prominent, to the exclusion of the fact investigator role. The point is subtle. The factual theory that he died from the initial collision, not the fire, was still viable. Where the story went too far was in the lawyer’s saying he died instantly.
FURTHER READING
Books
Fact Investigation: A Practical Guide to Interviewing, Counseling, and Case Theory Development by Paul J. Zwier and Anthony J. Bocchino (NITA, 2000)
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1. See §2.5 on memory.
2. See section 1.3.1 on probes.
3. In the event that you use a recorder, a digital recorder is more efficient for this purpose. Digital audio files can be stored, transmitted, and converted to written records more easily than the analog tapes created by older equipment.
4. See §3.2.1 on time lines, infra.
5. See Lawyers As Counselors: A Client-Centered Approach. by David A. Binder, Susan C. Price, and Paul Bergman, pps. 171–179 (West Publishing 1991, 2004).