21 Trial Lawyer • Summer 2023 The rules you set to create a safe container for the witness may change if they have a support person, but that does not mean the support person is a problem. For example, many witnesses who have disorders that interfere with processing, like post-traumatic stress disorder or attention deficit disorder, benefit from a spouse or loved one being present in an interview. Sometimes, attorneys have concerns that the support person may interfere with the witness’s testimony, and that is a valid concern. It can be helpful to set clear expectations with any support person such as, “I am so glad you both were able to be here today and I know it is important for [witness] to have [support person] present. My only concern in having support people present for witness interviews is that [support person] will not be allowed to testify in the case. It can be really difficult to watch someone you care about be in a situation like this, but I’m going to ask that as much as possible we give [witness] the opportunity to tell their story and answer the questions on their own, even if you want to jump in. Remember, all I’m looking for is whatever [witness] remembers. There are no wrong answers here. We’re just looking for the truth.” If the support person jumps in to fix the witness’s answer, that is good information for you to know about the reliability of both the witness and the witness’s dynamic with the support person. This person may not be a reliable witness if they consistently rely on someone else’s memory. If and when you run into issues with the witness’s reliability or inconsistencies with testimony, remember you are an expert about the law, but the witnesses, including your client, are the experts about the facts. You are mutually collaborating to create a clear, truthful picture of what happened and why it violates the law. If there is a hurdle in a case related to witness testimony, you will have a better result if you are open respecting the witness’s expertise on their own testimony and being curious where you don’t understand than if you try to ram their facts into the expectations of the law without regard to discrepancies. If something in the testimony sounds weird or inconsistent to you, it will also sound that way to a judge or jury. Inquire into the facts from the people who know the facts until you understand them. Empowerment and culture If a witness feels heard and empowered to tell the truth confidently, they will be persuasive to a judge and jury. Listening without talking is the simplest, hardest and most important technique in interviewing witnesses. It invites a witness to feel heard and empowered to tell their story. If you listen without talking, the witness may tell you many things you do not need to know, but they will also feel safe enough to tell you the truth of their experience. It will also, somewhat magically, make the witness respect you more. Once, I spoke with a witness and timed myself to only ask simple, open-ended questions for 45 minutes before I could offer any statements or other perspective. At the end of the 45 minutes of me barely talking, the witness said, “Well, I can really tell from this conversation that you’re an expert at what you do.” It is rare for people to feel heard, and when they do, they develop respect for themselves and for the listener. Find out what you can about the witness ahead of time in terms of their cultural background and worldview. If you can demonstrate respect for the witness, even if their identity characteristics are different than yours, it will contribute to the witness’s overall sense of empowerment and willingness to contribute their facts to your case. Cultural identity can mean the community in which a person was socialized, but it can also mean their socio-economic status, religious beliefs (if that is important to them), sex, sexuSee Interviewing Techniques p 22
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