One of our favorite guest bloggers is back!
Barbara Haubrich-Hass, ACP/CAS on:
It is important to memorialize the sequence of events in any given incident. One way to accomplish this is to obtain statements from the percipient witnesses. Nailing down a witness’ version of how an incident occurred early in a case can be one of the most important components of a thorough investigation. A paralegal should not determine which witness to statementize; that is a decision for the attorney to make. It is also up to the attorney to decide who conducts the interview with the witness. It is best if the attorney conducts the witness statement so that the attorney understands the facts of the case, obtains all of the information needed from the witness, and can evaluate the overall credibility of the witness.
However, some attorneys have their paralegal conduct the witness statements, while other attorneys hire investigators to conduct the witness statements. At a minimum, paralegals play a big role in locating the witnesses, setting up the interviews, and obtaining the physical evidence for the attorney to use to conduct the interviews.
In the pre-litigation stage of a case, an attorney cannot compel a witness to give a statement. When a witness refuses to provide a statement, then the statement will have to wait until litigation has commenced. The witness can then be compelled to testify at a deposition through the use of a deposition subpoena.
A. Preparing for the Interview
Knowing what information you want to obtain from the witness is the first step in preparing for the interview. Prior to the interview, review the evidentiary documentation in the file so that you have an understanding of the dynamics of the case, and how the witness fits in with the case scenario. It may be necessary to obtain additional documentary evidence before the witness statement is obtained.
B. Types of Statements
Witness statements can be written or recorded. A written statement is obtained in person as the questions and answers are written down by the interviewer. When the statement is concluded, the statement is either provided in handwritten form to the witness to review and sign; or the statement is typed and then provided to the witness to review and sign. Either way, before the witness dates and signs the statement, it is important to ask the witness to review the statement for any corrections.
A recorded statement is obtained either in person, over the telephone, or by other audio or video means. This method is particularly helpful in obtaining long distance witness statements that you otherwise may not be able to secure. At the beginning and end of every recorded statement, it is extremely important for the interviewer to have the witness acknowledge that he or she understands that the statement is being recorded and to grant permission for the statement to be recorded.
In order to lessen the likelihood that a witness statement may be discoverable in litigation, it is good practice to insert a sentence at the end of the written or recorded statement, as follows:
This witness statement was taken by an attorney. It contains the responses of the witness to questions formulated by the attorney based upon the attorney’s legal analysis, and reflects the impressions, conclusions, opinions, legal research, and theories of the attorney. This document is protected by the attorney work product doctrine.
For purposes of this article, an attorney is interested in obtaining statements from percipient witnesses (aka eye witnesses). However, there are other types of witnesses, such as character witnesses, lay witnesses, and expert witnesses that will not be discussed in this article as those witnesses do not fundamentally fit the criteria of this article.
Within the scope of percipient witnesses, there are “friendly” witnesses and “hostile” witnesses. A friendly witness is someone who is favorable to your side of the case and is a cooperative witness. In contrast, a hostile witness is someone who is against your side of the case and is adverse to your client’s interests. Generally, attorneys do not want to statementize hostile witnesses.
Stayed tuned! Tomorrow: Comprehensive Interviewing Techniques
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