2.3 Inhibitors and Techniques in Response

If you are able to get to the borderline or neutral witness early enough, before they have been biased against you, be very careful in your planning and approach in order not to scare away the witness.

The witness may be inhibited to reveal information that threatens self-esteem. For example, an insurance broker might not want to reveal specific information in his employment history where he failed to live up to either his own or the insurance carrier’s expectations. Other examples could include the fact that the broker may not have ever read the contract between the client

Also, where an insurance broker is answering questions from a lawyer opposed to the broker’s client, the broker will not likely want to be critical of the broker’s client. On the other hand, to admit that he did not read a policy he sold would make him look only concerned about the sale and his commission, and not concerned with whether he was providing insurance that fit a customer’s needs.

If the lawyer diagnoses that the witness is afraid of personal embarrassment, then the lawyer should offer reassurance about their role as advocate, not judge. If confidentiality can be offered, this can often alleviate the hesitation. Where it can’t be offered (see discussion below), the lawyer has to use his skills to develop rapport. These skills include the use of nonverbal probes, and active listening techniques to get the witness to feel complemented and safe, and reveal what is really of concern.

A quick review of these probes is in order here. The first is to choose a place for the interview that is non-threatening. Don’t call the witness into your office, but go out where they are comfortable, where they feel safe. Pick a time when they are likely to be relaxed, like early evening after they have eaten. Many nonprofessional witnesses don’t like to be bothered at work or right before dinner when they are rushing around doing family chores. On the other hand, meeting someone for drink after work, at their favorite watering hole, can provide a desirable atmosphere. 2.3.3 Prepare An Ice Breaker

The second key is to again prepare an ice breaker. Pick a common friend or shared interest to discuss. Give each of you a chance to relax and get to know the other’s habits of speech and manners of behavior. 2.3.4 Understanding

Third, establish that your goal is to reach an understanding of the witness’s knowledge and feeling for the subject. More will be said about this in the section on listening. Use silence, eye contact, head nods, “mm-hmms,” restatement, and reflection. Wait the witness out. He has the same needs for catharsis and meaning that we talked about with regard to client interviewing. Premature questioning or judgmental responses can kill a good narrative. Use head nods and silence to wait out the witness, giving them time to choose their own words, and order their thoughts. Don’t let him off the hook, or come to his rescue just when he is about to speak. Restate what you hear, and if this does not work, reflect the feelings you see on the witness’s face, to show that you care to reach a complete understanding and that his feelings, as well as his thoughts, are vital to this process. These probes often take time to work, and the best thing is to lend a sympathetic ear and exercise patience. Manage your own feelings of discomfort or impatience by expressing the willingness to wait the witness out, and force him to take all the time he needs to tell you about his particular circumstances.

The witness will sometimes fear that certain information could threaten his or her continued employment, (or own responsibility) and makes him hesitant to answer the lawyer’s questions. For example, if the environmental compliance officer in a company admits he knows of noncompliance, he could lose his job. If you work for the company, and anticipate such a situation where an employee is concerned he may lose his job over what he did, there are a number of ways you might respond. First, if there is some already existing evidence that he did make a mistake, you might first go to the organization’s in-house counsel and ask them how they want to treat the employee. Perhaps they will waive their conflict and offer assurances to the employee that they “are all in this together.” It may then be possible for the lawyer to offer joint representation and promise confidentiality and immunity from firing in exchange for the witnesses’s cooperation and truthful testimony.

The organization might express an unwillingness to make such promises until it learns more detailed information about what the witness actually did. If this is the case, the lawyer needs to guard against creating the reasonable impression in the witness that the witness’s statements are confidential before they are actually confidential.

Along the same line, the lawyer needs to be careful to state who he represents and what is and what is not confidential from the employer. In appropriate cases the lawyer might suggest counsel to the employee—if fairness dictates—that the employee is under suspicion. In any event, the lawyer should seek advice from the client on how to handle the potential conflict of interest before interviewing employees who are fact witnesses.

Again, in the situation involving the hypothetical insurance broker, if you are representing the insurance carrier, the broker might be afraid to admit that he made a mistake. As lawyer, if you were aware of this you could prepare to follow-up and ask specific questions about exactly what the broker said, did, and wrote, and to whom. Otherwise, the investigator has a tendency to become satisfied with conclusory statements of good positions because they fit the lawyer’s theory of the case. If there is some lurking conversation or evidence of the witness’s true memory, the lawyer needs to know that up front.