Developing Witness Outlines

Client and witness interviews have two general purposes—to help you learn information and to help you figure out what you don't know.

All lawyers should learn client and witness interviewing skills—things like how to build trust, how to ask non-leading questions, and how to obtain useful information. I can’t help you learn those skills. But I can help you learn to develop good interview outlines so you’ll come away from interviews with useful information.

Don’t Go in Unprepared—Draft an Outline   

   

Start preparing for each interview with this question: What do I need to know from this witness?

Begin by asking for background info (see below). Draft questions in some sort of logical order (chronological is usually best) but consider asking open-ended, non-leading questions initially. This decreases the likelihood that you’ll suggest a response to the witness.

We sometimes forget that many people hold lawyers in high esteem. A client or witness may try to “please” the lawyer by giving answers the person believes the lawyer wants to hear. If the open-ended questions don’t reveal the information you need, ask the more pointed questions you’ve included in your outline.

If you know what shape the case will or could take, make sure your outline includes questions that might lead to legally relevant information. You’ll need to be at least somewhat familiar with the relevant law to know what types of questions to ask. Learn the elements of civil claims or criminal acts and consider possible defenses. Then, outline questions that could lead you to information relevant to the claims, acts, or defenses.

Get Background Info

This tip seems a no-brainer, but many attorneys jump right in to interviews without getting essential background information about the person they’re interviewing. You might need to speak with the person again. You might need to subpoena the person.

So get some essential information, including the person’s full name, the person’s address, and how you can get in touch with the person in the future if you need to do so. Try to get a telephone number (at least one, at a minimum) and an email address.

Bring Documents and the Like With You

If you have contracts, emails, photos, videos, or other documents that you want to ask the witness about, bring copies of those documents with you. This can help you gain an accurate understanding of the person’s knowledge and potential testimony.

Bring copies, not originals, so the witness can mark on the copies, if necessary. You might also want to bring paper and ask the witness to draw, for example, a crime or accident scene if doing so would assist you in understanding what the witness saw or did not see.

Take Good Notes & Include Precise Words

Your interview won’t do you any good if you don’t take good notes. You may later be able to recall the gist of the person’s statements to you, but you likely won’t remember specifics. And anyone who practices law knows the devil is in the details. Good lawyers take copious notes during interviews.

Include precise statements in those notes that can be used later to support their client's claims or defenses. I was once involved in a very serious car accident case involving numerous vehicles. A major question in the litigation was which car caused the accident.

At an initial interview, a witness told me that one driver was “driving like a madman” just prior to the accident.

That statement came up again and again in the case. The witness was asked about it at his deposition and the statement was included in an affidavit he provided. The precise language, “driving like a madman,” was critical. Had I not written it down, the case might have dragged on for much longer or the parties might have been unable to reach a settlement.

Follow Up, If Necessary

Sometimes you’ll learn that a client or witness has documents or information that must be retrieved to answer your question or that the person can provide contact information for other people with knowledge of the situation at hand.

If the witness agrees to provide additional information to you, don’t forget to follow up via phone call, email, or letter. Thank the person for speaking with you and ask that they provide the requested information.

Make providing that information easy for the witness. Offer to pay any shipping costs or send a courier to retrieve documents. Agree to meet the witness at a place of the witness’s choosing to obtain what you need. You’re much more likely to get the information you want if you do the hard work.