18 Trial Lawyer • Summer 2023 Meredith Holley By Meredith Holley OTLA Guardian One Monday morning, two urgent voicemails greeted my return to the office. The voice asked something veiled like, “Is this the attorney who is handling a sexual assault case? I might have important information for you … [long pause] [click]” and “I really need to talk with the attorney who is representing a woman who was sexually assaulted during a massage. I got your name from the newspaper, and I want to make sure you represent the woman not the business. I might have information that would help your case … [click]” I had that feeling you get when someone sends you a spam email with a virus attached saying you just won $1 million: “This is definitely a trap.” I called back, though, just to see. The woman who answered told me the exact story I wanted to hear to lock in negligence claims I spent the weekend worrying would not survive summary judgment. According to her, she reported to the owners of the business defendant a sexual assault identical to the one my client experienced only three months before my client’s assault. The owners did nothing in response. She contacted me because the defense counsel, who is familiar to many plaintiff lawyers as a notorious bad actor, had called and communicated what the witness felt was intimidation not to participate in the case. She didn’t even know about the case before his intimidation call. Honestly, it still felt like a trap. I talked with more experienced attorneys and we all agreed that defense counsel was nefarious enough that this could be some kind of plot … but what was the plot? And what if it wasn’t … ? The story was so perfect that I began questioning myself. At deposition, did I forget to ask the business owners whether they had notice the massage therapist was a danger of sexual assault? I looked back at the deposition transcript, and sure enough, I had half a page with both owners, asking in every way possible whether they had any notice. Clear “no” answers to every question. Not only did the crucial witness exist, the defendants lied under oath. The witness could only meet with me late at night after work because she didn’t want to lose her new job. Thankfully, a fellow OTLAn1 lent me her office conference room for the evening, and I drove to Portland from Eugene to hold a latenight, clandestine meeting with a woman who was more skeptical of me than I was of her. She must have asked me three or four times when we first met, “I just want to make sure … you represent the woman who was assaulted right? Not the business?” She was terrified. She was afraid that talking about her assault could harm her and also that it could harm other vulnerable women. Trauma response This brings me to the first key fact to remember in any witness interview. The witness is having a traumatic experience, just by talking to you. They might want to talk to you, you might be the nicest person ever to pass the bar, but unless they are a professional witness (and sometimes even then) the witness is still having a traumatic experience in talking to you. This is true, in part, because of power dynamics (lawyers are intimidating!) and at least in part because as Americans, most people in our communities have been raised on the value that talking Interviewing Techniques
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