2.2 Corroborating Witnesses

As soon as you can, you need to determine the level of trust you can place in your opponent’s documents by interviewing other witnesses who will be able to corroborate what you are finding.

When dealing with a friendly witness, the lawyer’s first goal is to obtain information. The lawyer needs to obtain and preserve all favorable facts. He needs to obtain and subordinate (not suppress) unfavorable information. He needs to obtain leads to other facts, evidence and witnesses. He also needs to preserve information by ensuring that he has the ability to locate it again. In addition, the lawyer needs to establish rapport. This rapport not only helps him get information, but it can enlist partisan support which can engender a number of side benefits, including moral support for the client, as well as a certain unapologetic enthusiasm for the lawyer and the case. 2.2.2 Unfriendly Witnesses

If the witness is unfriendly, or at best neutral, the lawyer has many of the same goals as when the witness is friendly. At the same time though, the lawyer wants to obtain information about the sources or bases of any adverse bias the witness might have. The lawyer also needs to be on the lookout to preserve impeaching utterances. Rapport still may help get information and entice the witness into disclosing his bias and his impeaching utterances, but if these techniques fail, then the lawyer must ask more pointed questions. Finally, with the unfriendly witness, the lawyer needs to evaluate the critical information that the witness possesses to determine whether the witness threatens either the legal theory, the factual theory, or the theme of the case. 2.2.3 Contrasting Questioning Strategies

For example, if dealing with a friendly witness—an insurance broker, on behalf of an insurance company—the earlier-described interview model (ice breaker, emotional deck clearing, problem skeleton outline, early theory verification, and partnered closing) should work very well.

You’ve worked with this insurance company for a number of years?

What has been your relationship with them?

How’s business?

You mentioned termite protection. In your experience, how often has an excess policy ever covered termites?

Please tell me about what types of coverage is provided in an excess policy like the one you sold in this case.

Tell me about your meeting with the risk management team at the company.

Describe the steps you took after your interview with company officials, in preparing the contract for signature.

If rapport has developed and the broker believes the lawyer is on his side, the broker should be forthcoming with complete and comprehensive answers to these questions.

In contrast, hostile or borderline witnesses are unlikely to respond very well to open ended questions or to the “bucket bailer” approach to interviewing. They may prefer not to answer, or to wait the lawyer out by answering simply and in a misleading manner. Their narrative statements are more likely to be vague and conclusory. For example, if the broker were asked the above questions by the insured’s lawyer, the broker would likely answer, “I just love my relationship with the insurance company. I have always found them to pay quickly on legitimate claims.” If the broker is in a continuing relationship with the insurance company, he is likely to be hesitant to say more than how good business was and how honest the insurance company representative was, for fear that his answers would get back to the insurance company.

In addition, the broker’s early answers to these open ended and general questions could cause him to infer other answers consistent with these earlier answers, compounding the bias effects in the witness’s statements. For example, once he has committed himself that things are great with the insurance company, and that the insurance company is an honest shop, it would be much harder for him to later admit that he remembered the insurance company representative promising that coverage would include the events at issue in the case.

Invert the order in which you use bailing instruments to bail out the witness’s information. You need to get in the boat before you can bail. Start with narrower questions and get answers that can be quickly and easily given. Also, by using more leading type questions, it is more likely to avoid the false inferences that can arise from inferential and biased reconstruction of events. Using “cans” and “ladles” starts the question more at the theory verification part of the questioning. For example, the insured’s lawyer, after some ice breaking, might ask the broker more leading questions, earlier.

These questions might include:

You got a commission on a sale to this insured?

As a broker, you wanted to make sure there was a fit between what the insurance company was selling and what the insured needed?

You were familiar with the business the insured was in?

Did their risk management director strike you as competent in his field?

Would it have been unusual for a risk manager looking to protect his company’s business to want to customize insurance to his company’s particular risks?

While the leading question is dangerous, its adversarial nature can be cut by editing out the traditional lawyer-like signals of hostility. The fact investigator should not be asking, “It’s true that … ” “It’s correct that … ” or finish off the statements with, “ … isn’t that correct?”