17 Trial Lawyer • Summer 2023 Another goal may be to obtain admissions that you can use to highlight inconsistencies or otherwise attack the credibility of the witness at trial. Because they are disinterested nonparties, third-party witnesses typically are not concerned about how their testimony may affect the outcome of the case. A lawyer who can keep the witness at ease while skillfully navigating key topics may obtain helpful testimony from the witness that would be more difficult to elicit from an adverse party. It is also helpful to remember that, although third-party witnesses generally do not care about the outcome of the case, most witnesses do care about being viewed as credible. A witness who feels a questioning lawyer is trying to make them look bad is more likely to dig in their heels and try to bolster their testimony, and less likely to be forthcoming with other information. Rather than challenging the witness in a way that makes them view you as an adversary, giving the witness an “out” and allowing them to save face by admitting that they may not know the whole story or are not sure about a particular fact may yield more fruit and lead to further admissions you can use for dispositive motions and cross examination at trial. Conclusion Of course, every case and every witness is different, and what works best in one case may not be the most helpful approach in all of them. The good news is, between informal witness interviews, document subpoenas, depositions and declarations, a lawyer has multiple tools and approaches to choose from in determining how to obtain valuable information and testimony from third-party witnesses. Angie Ferrer is an employment attorney with Buchanan Angeli Altschul & Sullivan LLP, 921 SW Washington St., Ste. 516, Portland, OR 97205. She can be reached at angela@baaslaw.com or 503-974-5015.
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