2.6 Planning To Use Other Facilitators

As stated above, picking the right time and place can go along way to alleviating witnesses’ legitimate concerns about their personal use of time. Yet these might be excuses to some other inhibition that keeps the witness from talking.

One way of diagnosing the inhibition is to use facilitators with gradually escalating consequences to help the lawyer determine the true nature of the inhibition. For example, the lawyer could first engage in what psychologists call an “altruistic appeal.” The lawyer could plan to deliver a short one-paragraph statement of the strengths of their case, and then make an altruistic deal. For example, if a lawyer represents a client, Homestead Properties, Inc., which bought an insurance policy from Manhattan Fire & Casualty Company to cover problems that might arise from their manufactured home business, and Homestead cannot get Manhattan to pay on the policy, the fact investigating lawyer might start out this way:

I represent Homestead, who is facing bankruptcy because it can’t get payment from Manhattan on the excess policy it paid on for over six years. Homestead needed excess coverage for manufacturing defects because in was mass manufacturing homes, much like a car maker mass manufacturers cars. It followed Florida guidelines regarding application of pesticide for termites, only to find that Florida’s guidelines were inadequate for its type of construction. Unbeknownst to Homestead, termites had infested and destroyed over $30 million worth of its homes. We appreciate your willingness to talk to us in this case. There are powerful forces at work against Homestead, and it is not everyone who would be willing to stand up and say what they know. Thank you for agreeing to talk.

The power of the persuasive statement on the borderline witness cannot be overestimated. It tells the witness not just what side you are on, but that you are on the side of truth and justice. If you have a witness who really does not know what he knows, or hasn’t yet developed a point of view, such a well-told statement could create a general premise from which he is willing to infer all sorts of things.

If this fails, the lawyer can make time savings statements. A fact investigator for Homestead could say, “We are still early on in the process and we are trying to decide what position we will take in this case. If you talk to us now, there may be no need to talk later. If we can show Homestead what role you played, and what role Manhattan played in creating the contract, then Homestead can decide what it should do.” Implicitly, the lawyer is saying, “If we can just have a few minutes of your time now, this may all go away.”

Or, the lawyer may raise the stakes:

Look, you either talk to me now, or I’ll have to subpoena you. Then other lawyers will be present, and you’ll be placed under oath, and then you’ll have to answer my questions. I don’t want that and you don’t want that. I don’t think this will take too long. Please answer my questions.

Of course threats may backfire. They certainly will dampen your efforts at establishing rapport. But if you are serious in your need for the information, you might also investigate even more immediate threats. If you are investigating on behalf of Manhattan, for example, you may especially need the insurance broker’s cooperation, because some other witness is unavailable. If the particular witness has a job (or insurance policy) that requires him to cooperate, this fact can be used as a threat to force the issue. Even here, use the threat in stages.

Look, I don’t want to be in a position of reporting back to the boss (or insurance company) that you are not cooperating with my investigation. What do you say we take the time now and sort out what happened?

If these efforts fail, shift over into damage control.

This raises some additional planning issues before the fact investigator goes to meet the witness. Often the investigator goes armed with an official looking legal pad and pen, and madly records down verbatim what the witness tells him. But using these techniques prematurely increases the likelihood that the investigator won’t establish any kind of rapport, or that he will forget to look interested, or nonjudgmental, or maintain eye contact, or head nod, or appropriately respond to what he sees in the witness’s face while the witness is talking.

Researchers tell us that communication is a physical act, and that only a small part of it is what we actually say. Our feelings will often be evident in the way we say something and convey additional weight and meaning.³ Often the nuance, subtlety, or conflicting feeling comes from the hand gestures, eyes, or expression on the face. These all go unobserved if the investigator’s head is buried in his yellow pad. Better for the interviewer to develop habits that allow him “to listen with his eyes,” rather than just his ears.

Other techniques that allow you to give full attention to the interviewee and which have some prove success are:

1. Wait until after you are done, then offer to write up what has been said, “to make sure I’ve got it right.”

The witness can look it over and make any corrections, and then sign the statement.

2. Another technique is to bring along a third person to take notes.

3. A third option is to tape the conversation.

The dangers with these last techniques should not be overlooked. Not only can they impede the witness in his telling, the technique could be illegal if done without permission. In New York for example, you must tell a person you are recording the conversation, or you can’t use it against him, and you can be sued for invasion of his privacy. Also, because the lawyer does not know yet what the witness will say, the lawyer could be preserving damaging testimony against his client. It is most often better to interview first and then record in the form of statement or later deposition, if the need arises. Otherwise it is better to first try face-to-face rapport building techniques, than to go in using your adversarial manner. You can always become more adversarial. If you start adversarial, it is unlikely that becoming friendly later will work.

FURTHER READING

Books

Deborah Stone, Bruce Patton, and Sheila Heen, Difficult Conversations: How to Discuss What Matters Most (Vantage, 1999).

David A. Binder, Paul Bergman and Susan C. Price, Lawyer as Counselor: A Client-Centered Approach (1990).

David A. Binder and Paul Bergman, Fact Investigation (1984).

_________________

1. See chapter 5, infra.

2. Elizabeth F. Loftus, Surprising New Insights Into How We Remember and Why We Forget ( Addison-Wesley Pub. Co., 1980); Elizabeth F. Loftus, Eye Witness Testimony, (Harvard University Press 1996.)

3. Douglas Stone, Bruce Patton, Sheila Heen, Difficult Conversations: How To Discuss what Matters Most (Viking Press, 1999).