19 Trial Lawyer • Summer 2023 about someone else’s wrongdoing is worse than the wrongdoing itself. Most of us were at least told as children, “If you can’t say something nice, don’t say anything at all,” and many of us were told something like, “We don’t talk to strangers about what happens in the family.” As plaintiff lawyers, most of us live outside of this value and are even at odds with it, but it nevertheless exists in our communities and informs how witnesses engage with us. Doctors don’t want to testify against doctors, neighbors against neighbors, employees against employers. We all want to be heard, but none of us wants to be a “tattler” or a “rat.” Talking about our experiences to a lawyer is so contrary to the core value of whitewashing that it is a traumatic event for witnesses. You may ask, “Why does it matter if the witness is having a traumatic response? All they need to do is tell us what happened. I’m not their therapist.” The reason it matters is when we have a traumatic response, our brains go into a protective mode whether that mode is fight, flight, freeze or fawn.2 It limits our abilities to see, hear, speak and remember. If a witness is in a traumatic response, they may be telling you the truth of their memory or opinion, but it will be limited by their physiological response. If a witness feels safe, they will be better able to communicate and access their memories and executive functioning. Third party interviewing That brings me to the most important piece of advice I could ever give about witness interviewing technique: Don’t interview witnesses. Hire a private investigator, unless you absolutely can’t. Our office works with Cynthia Liles, and we highly recommend her.3 The reality is that private investigators are trained to gather information in a different way than lawyers are trained. They are less intimidating to witnesses, and their training makes them better at getting the information you need. While you may need to work with your PI to make sure they understand the key elements of your case, and they are not trained as lawyers, their training is invaluable. Here are the additional most crucial reasons to hire a private investigator: 1. If something happens to a witness or the witness changes testimony, the private investigator can testify at trial. You cannot. 2. You are an advocate, and your questioning will consciously or unconsciously reflect your adversarial position. A private investigator is more likely to be able to encounter the witness from an unbiased perspective and elicit reliable testimony. More than once, I have watched an attorney interview a witness with closed-ended questions (“wouldn’t you agree the light was red when the defendant approached the intersection?”), only to learn later that while the witness “would agree” with the statement “the light was red at the scene,” the witness also “would agree” with the defendant’s position that made the color of the light irrelevant. Closed-ended questions filter out new information. Private investigators gather new information. 3. You can’t be everyone everywhere all at once. If witnesses are waiting for your call back because you are arguing a summary judgment motion in another case, there is the potential that you may lose those relationships through no fault of your own. Private investigators are experts not just at fact gathering, but also at relationship building. While you are lawyering, a private investigator can make sure you know not only what a witness will say, but whether the witness is planning to take the bus to the deposition when you could arrange a ride instead. They can help you build a trustworthy connection that makes sure the witness shows up for the case. See Interviewing Techniques p 20
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