When Interviewing a Witness, Actively Listen to Them

When interviewing a witness, actively listen to them.

As trial lawyers, we often feel the need to completely control all of the conversations we’re a part of (yes, even conversations with our friends and loved ones); while that is a great strategy on cross-examination, it can result in us not getting as much information (i.e. potential evidence) as we could have while conducting witness interviews. Closed questions often lead to specific answers that more often than not leave out relevant (and sometimes critical) facts. As such, asking open ended questions and encouraging the witness to tell you everything is the best practice when interviewing a witness. Follow-up questions, of course, are excellent to ask as well; there’s certainly nothing wrong with asking a witness to elaborate.

During an internship, I sat-in on a witness interview that was conducted contrary to the advice above. The attorney asked the witness closed questions from start to finish; at the end of the interview, as the witness started to walk out of the office, she mentioned a seemingly unimportant fact that in actuality had large ramifications on the case at hand. Had the attorney not gotten lucky, he would have missed that fact entirely.

Taking notes can sometimes get in the way of actively listening to a witness; if you find that that’s case for you, then bring an assistant to take notes for you. And make sure you never leave a witness interview without asking for recommendations on who else to interview.

The take away: Listen, listen, damn it LISTEN!