Communicating with Lay Witnesses

A. Your contact vs. the investigator

1. What is my goal and what product do I want out of this witness?
2. What kind of relationship am I looking for?
3. How skilled am I you as a communicator vs. my investigator? Is my silver haired old fox the better choice for this assignment?
4. Practicality – Do I have the time to make these connections or are you looking for a hit and run approach? (If it is a critical witness this is not part of the equation – make the time or pay the consequences)

B. Approach strategies

1. The first call and the message to be conveyed:
a. I am not from the dark side (sound familiar?)
b. We have common interests.
c. I need your help / my client little Joey needs your help.
d. We need you because your roll in this case is unique, without you we are crippled.
e. Can you tell me a little bit about what happened?

C. The witness exposure rule

Everyone who watches a cop show knows that the witness is a decent human being but always gets snuffed out before the Geico commercial. So, witnesses are a leery group by nature and you must convince them that their exposure is limited in time, scope, and energy.

The Must Do’s of – What can I do to help you?

a. Make their involvement as easy as possible.
b. Always adjust to their individual needs.
c. Remove their burdens whenever possible.
d. Convince them you are jumping through hoops for them.
e. Notice their deposition in their home city, with convenient dates, times and special needs addressed to make them feel as important as they truly are.

Golden Nuggets and Ignorance

Just by your actions of accommodation you will walk from the dark side to the light and the results will be to receive information, cooperation and frequently obtain results you may not have anticipated. These are the golden fleeced intangibles. They have only appeared because of your conduct the lead up to your deposition, trial or other proceedings in despite your subsequently held belief that your nugget was the result of your artful examination.

D. Witnesses make a difference

As lawyers we know witnesses make a difference but they needed to be reminded of this fact regularly and often.

“You may not realize it but your help here today makes a difference and I thank you for your courage to be here today and the effort you have made – people like you make a difference in our society.”

A witness will never forget that she was thanked for her help and that she made a difference. And, they will not soon forget you for having said so.