15 Trial Lawyer • Summer 2023 See Third-Party Witnesses 16 witness’s decision to hire a lawyer was helpful for me because the lawyer encouraged his client to engage and facilitated the process of obtaining the witness's declaration. When litigating against a corporate entity, keep in mind the business’s employees may be deemed “represented” by opposing counsel. In general, whether individual employees are considered to be represented by the corporate party’s attorney depends on whether they are current or former employees, their jobs or positions are within the company, and whether they were involved in the matter or their conduct is at issue in the litigation. See, e.g., Oregon Formal Ethics Opinion No. 2005-80 (Revised 2016). Even when contacting former management employees of a corporate party, in some instances it may make sense to clarify whether they are represented by opposing counsel before talking with them about the case. Goals for the witness interview Once you’ve determined that you can talk to a third-party witness, gather as much information as possible from your client and from relevant documents about how this person fits into the case and what the witness might contribute. It is helpful to have an idea about the goals for the interview ahead of time and to prepare an outline of what you plan to discuss. For example: • Are you looking for general information and background that may help in understanding the case? • Are there specific facts you hope the witness will corroborate or allegations from the other side you hope the witness will discredit? • Is this a potential trial witness? • Will the other side call the witness in its case? If you think this may be a witness for the other side, can you find inconsistencies or other potential points for cross examination? • Do you plan to ask the witness for a declaration? If so, what points will it cover? Along with gathering information and testimony, another primary goal in talking with the witness is to establish a rapport and make the witness feel comfortable talking with you. Ask the witness to be open and honest in their responses, even if they think you may not like what they have to say. If the witness does say something not favorable to your case, avoid arguing with the witness or making them feel like you want to change their mind. Instead, thank them for their candor and move on. In talking with an unrepresented third-party witness, keep in mind Oregon Rule of Professional Conduct 4.3, which provides: In dealing on behalf of a client or the lawyer’s own interests with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than to secure counsel, if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client or the lawyer’s own interests. It is important the witness understands you are not a neutral factfinder, and your job as an attorney is to advocate for your client. The witness also should understand that conversations between the lawyer and the third-party witness are not privileged or confidential and, ultimately, you may need to use whatever information the witness provides in your client’s case. In John’s case, the witness interviews
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