Using Psychology to Get the Best Statement |
The ADVOCATE
Interviewing witnesses:
Using Psychology to get the best statement
By Bruce Robertson
In September of 2007 an article by Bruce Robertson was published in The Advocate, the magazine of the Consumer Attorney Association of Los Angeles. The article was entitled “Interviewing Witnesses, Using Psychology to Get the best Statement.” The article, reproduced below, gives valuable tips on how to interview witnesses for the best outcome.
Witnesses are a crucial link in any personal injury accident; they can make or break your case. There are a number of factors to consider when dealing with witnesses that address their state of mind and possible inaccurate assumptions about the chain of events. This article deals with techniques used by a private investigator to obtain the best possible statement from a witness.
When conducting a witness interview, it sometime becomes apparent that the witness is confused about the details of the occurrence. It is important to remember that this person may have been exposed to a very traumatic event for only a few seconds. Given the time frame and the emotional charge associated with the event, it may be difficult for the witness to accurately remember all the facts.
Keep in mind that when confronted with a traumatic situation, it is the tendency of the human mind to instantly try to identify or create a rational cause for the event. Once the brain has assumed it has identified such a cause, the individual will tend to filter recollections through these assumptions. The objective of the witness interview is to overcome these preconceived notions and identify the true facts.
When arranging to meet with the witness, it is best to tailor the time and conditions to their preference. Some witnesses will prefer to meet at their home, some at a nearby coffee shop and others at the office. Every effort should be made to put the witness at ease by being friendly and respectful.
First Impressions
Start the interview with some pleasant conversation, which in addition to making the witness feel comfortable, should give you important information about their personality and how best to approach them. An opinionated and aggressive witness should be handled with “kid gloves,” versus an easy-going congenial “people pleaser” type who may need little encouragement to provide the facts.
The first task is to ascertain what the witness recalls. It is helpful to draw a diagram of the scene of the accident. Ask the witness to recount the essential facts of the incident without trying to influence or interrupt them. Do not react if they make statements that are not favorable to your case. Let them get the whole story out and acknowledge them for doing so.
After listening to their entire recollection of the incident, next deal with any unfavorable factors. If you have knowledge of alternate scenarios, present these other explanations in a non-threatening manner. You might say, “That’s interesting, let me tell you what another witness had to say,” or “Let’s consider the possibilities of it happening this way…” It’s better not to say “Well my client says it happened this way” because this approach is likely to put the witness on the defensive.
It is important to create an environment that makes it safe for the witness to change his or her mind. Explain the difficulties of observing so many facts in so little time. Reinforce the fact that the witness was actually a part of this traumatic event. Explain the tendency of the human mind to immediately rationalize the facts to explain the cause of the accident.
>>> Continued from Private Eye, print edition:
"Overcoming objections"
If there are facts that conflict with the witness’s account, present the reasons why it is likely the accident happened as you have suggested without getting into an ego battle or personal confrontation. This step is known in sales as “overcoming objections.” Calmly repeat the key facts and the reasons why it is likely they are correct.
When you have done as much as possible to establish the facts, you then prepare a statement based on the witness’s recollection. The statement should be written in the first person, as if the witness were writing it. The statement should start with a paragraph identifying the witness by name, address and date of birth.
The body of the statement describes in the first person what the witness saw. It is a moment-by-moment chronological description of the events. Try to use language that is familiar to the witness, however, avoid acronyms, slang, or vague terms, such as “he blew the light”.
If the witness is favorable to your case, include their opinion as to the causes. It is important to remember that even though a witness may believe your client was at fault, they may provide facts that prove the liability in your favor just the same. You do not necessarily need to convince them of this as long as the favorable facts are present in the statement.
If the witness’s recollection is adverse to your client’s case, it may still be useful to prepare a detailed written statement, especially if you think the witness is unfairly biased toward your client. The more unreasonable or illogical assertions you nail down in statement, the more ground work you lay to impeach that witness in the future.
The witness statement should conclude with a “penalty of perjury” declaration and be singed and dated. In addition you should get what is called “anchor” information about the witness, such as a work contact and the name of a relative or friend that would know how to contact them if they were to move in the future. Finally, leave the witness with a positive feeling about the interview and thank them for their cooperation.
Advantages to using an investigator
There are advantages to using an investigator to contact the witness. If an attorney interviews the witness, the witness knows that the attorney is representing his or her client. The adverse witness is on the defensive from the beginning of such an interview. An investigator, on the other hand, can appear objective and disinterested in the outcome, thus putting the witness more at ease.
By using an investigator, the attorney avoids prying questions from the witness about the degree of injury or the value of the case. The attorney is also protected from becoming a witness in his or her own case. (See Evid. Code 700; People v. Boford (1953) 117 Cal.App.2d 576, 580, [256 P .2d 334, 337]. And finally, in cases where the witness feels coerced or “worked,” the attorney can avoid accusations at deposition or trial of trying to assert undue influence on the witness.
The most important thing to remember is that witnesses, like all of us, want to be treated with respect. By understanding the psychological dynamics of what happens when one witnesses an accident, we can relate to witnesses more effectively. The result will be the best witness statement possible.
Bruce Robertson, founder of Tristar Investigation, is a private investigator with 28 years of experience. As an expert in his field, he is a sought after commentator on CNN, MSNBC, Court TV, The History Channel, PRI and many others. He has been featured as a speaker for CAALA Continuing Legal Education seminars. |
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