Why Do In-house Counsel Need to Interview Witnesses?
In-house counsel may need to interview witnesses during a variety of situations where legal risk, compliance, or litigation is involved. Interviews may be required for internal investigations such as when allegations of misconduct have been made, when regulatory inquiries occur, for whistleblower complaints or suspected contraventions of company policies. Prior to and during a case, in-house counsel may have to interview witnesses. Employment disputes are fertile ground for the need for witness evidence, and again in-house counsel may be required to interview witnesses in those matters. There may also be requirements for in-house counsel to interview witnesses to ensure regulatory compliance and for internal audit purposes.
Given the importance of the interviewing a witness, how you approach the witness interview is a critical consideration. There are no hard and fast rules about how to interview a witness, and each interview will be different. Style, manner and questions all need to be tailored to meet the particular situation at hand.
Logistical Issues
Preparation is always a key step. Use a chronology to prepare a draft witness statement and list of questions for the witness. Have copies of documents available for the witness to review. Ask the witness to bring copies of diaries, passports and other reminder systems to the statement interview.
A person’s memory fades with time. People are more likely to remember what they did, and in more detail, yesterday than what they did a month, year or decade ago. So, interview a witness to an event as soon as possible after that event occurred.
It is likely that your witness will be a busy person, with better things to do than prepare a witness statement. You should therefore do as much as you can to make it easier for the witness to attend and give the statement. Organise witness statement taking as far in advance as possible.
It is always preferable to meet the witness face to face. There are a number of advantages to a face to face meeting. Meeting face-to-face enables you to capture the attention of the witness. The witness is unlikely to want to break off a face to face meeting or be otherwise distracted, for fear of insulting the interviewer. Face-to-face meetings also provide the opportunity to evaluate a witness in ways that other forms of meetings do not.
Avoid interviewing more than one witness at a time. A witness may change his or her story because of the presence of another. This may be because the witness has some reservation about speaking in the presence of the other person or because the witness adapts their testimony to conform with what the other person says. Further, lawyers are subject to ethical duties concerning meeting witnesses and generally those duties require you to meet witnesses individually.
The Interview
Whilst there are no hard and fast rules about how an interview should be undertaken, it often happens that an interview will follow a familiar format. Initially, the interview will consist of introductions and obtaining and exchanging preliminary information. The interview is then likely to progress to the material facts and then to summarise those facts and review issues of further interest or which require more explanation.
Ask at the beginning of the interview if the witness has made any written record of the facts and events in issue. People make notes, keep diaries and record events in many ways. In some instances, witnesses may even have previously given a statement to someone else. It is important to explore whether the witness has made a previous written record of the events which you are concerned about. Also ask the witness if they have brought any documents to the interview.
Often the witness will then hand you documents!
A good way to begin to develop a rapport with the witness and help ease any anxiety of their behalf is to obtain background material from them prior to the witness telling their story. This sort of background includes information concerning name, address, family and employment. The witness then relates the story to their experience.
Once the story has been fully told and recorded, the interviewer should then confirm and revise essential issues and information. The goal is to exhaust the witness’s memory and probe to obtain as much detail as possible.
It is almost always easier to prepare a witness statement if you can establish a rapport with the witness. This does not mean that you need to become a friend of the witness, indeed, becoming too close to a witness can cloud your judgment about a case. Rather, seek to put the witness at their ease by actively listening to what they say and communicating with them about what they might expect to occur. Whilst writing out questions in advance can help you to focus on what to ask the witness, beware of treating those questions as a script. Be prepared to depart from your list of questions. To do this, you must listen to what the witness wants to say and not just write down their answers to your questions. Be careful not to impose your own view of the case on the witness. This can occur by express statement or insinuation. Rather, show respect for the viewpoint of the witness. This can be done by maintaining eye contact with the witness, nodding your head in agreement, encouraging witnesses by saying “yes”, “very interesting”, “really”, or words of similar import. Know your case. To conduct an effective interview of a witness, be a master of the applicable law, the pleadings, the discovered documents and relevant facts.
Get the witness to “open up” and use follow up questions. Make every effort to get the witness to open up in the interview. Think of taking the statement as an exercise in reverse cross examination. Typically, in cross examination, you should not ask the witness to explain or the “why” question. Taking a witness statement is very different. Almost always ask open ended questions, ask the witness to explain and ask the witness “why”. “Why?” is a great follow up question. It opens up inconsistencies, contradictions and even motives. Be careful of blindly taking what is said for granted. Ask the witness where they learnt their information and challenge what they have to say.
The usual method of giving evidence of a conversation is to recount the conversation in direct speech. Witnesses can find this particularly difficult to do, as it is hard to recall the exact words that were said in a conversation. However, care needs to be taken to remind the witness that this is the best way to lead evidence of a conversation. To prompt memory of words said in conversations, ask about the sequence of who spoke, when the conversation took place, who spoke, how long the conversation lasted, where it occurred and were there any documents referred to.
Write it all down regardless of what is said! In the first instance, write down everything that the witness says - regardless of whether the statements being made by the witness are damaging, inadmissible or seemingly irrelevant. Such material may be useful to better understand the case or used later to prime counsel with material that can be used when cross examining your opponent’s witnesses. You will usually have time to review the final draft that will eventually become part of the court record, to ensure that it meets the evidentiary and formal requirements.
Taking notes shows that you are interested in what the witness is saying. It therefore aids to develop a rapport with the witness and demonstrates that you are listening to what is being said. Most witnesses will speak faster than you are able to write. Do not be afraid to ask the witness to slow down and to repeat what they have said. Again, this shows that you are interested enough in what is being said to want to record it accurately.
Do not accept “I don’t know” as an answer. Ask follow-up questions such as: “What do you think the answer to the questions is?” “Did you once know the answer?” “Who did you tell?” “Could you have written a note about it?” “Who did you send it to?” “Who might know the answer?” “If you had to find an answer, where would you look or who would you ask?” Also, be careful about the person who says, “as a general rule we always...” or “I would have...”. These answers can be evasive because they may not be answering your specific question, but instead a question that you did not ask. Consider why the witness likes to answer that way. Do they really not know the answer, or not want to tell you the answer, or do they not understand what you have asked. Insist on an answer to your question.
Listen for ambiguities in the facts that the witness is telling you. Ask the witness follow up questions to attempt to resolve the ambiguities, or at least clarify what has been said.
Preparing the Draft Statement
If the witness is willing, ask them to prepare a statement about the facts and events in their own words prior to meeting them. Sometimes, the best witness statements are those that are prepared solely by the witness. The statement may not be admissible, but it can be a good starting point for developing a comprehensive statement. It may also contain valuable information about the case, which you may not have thought to ask about. However, be aware that a statement written by a witness is likely to need a large amount of work to turn it into an admissible proof. Remember to tell the witness that you may need to amend their draft statement for this reason.
Final Comments – Don’t Delay!
If possible, prepare a draft of the statement as you work with the witness. The draft statement can then be reviewed by the witness. This can save time in the long run, by avoiding the exchange of many drafts of the statement with the witness. In any event, attempt to paraphrase and summarise what the witness is saying as you proceed with the interview. This activity helps to show the witness that you understand what they have been saying and helps you to check that you have properly recorded what the witness has said. Summarising what the witness has said also helps to develop your rapport with the witness. If you can summarise what the witness said in a meaningful way, you are showing the witness that you have been listening to what they have been saying. If you are uncertain whether the witness may be available, or willing to review a draft statement or affidavit after the initial meeting, ask the witness to read and sign each page of your notes.
If you cannot prepare the statement at the interview, do not delay in preparing the statement after the interview. When you prepare the statement, you will most likely rely on your memory as well as your notes or any recording. The longer that you delay in preparing the statement, the harder it will be to remember the interview and therefore the harder to draft the statement. Always ensure that the witness reviews a copy of the draft statement. However, when doing so be mindful of waiver of privilege. The statement must reflect the witness’s recollection and to that extent, the more that the witness has to do with its production, the more likely that the statement will be accurate.
Author: Paul Venus, Partner, Piper Alderman