Dealing with the Uncooperative Lay Witness
A. Big Surprise – the phone is not ringing
As above the phone is not ringing because the last witness who talked was discovered in a trash can just after the Geico commercial.
Rationale to be overcome:
1. Fear and anxiety about involvement
2. Lawyers are from the dark side and I don’t help anyone from the dark side.
3. The last lawyer I dealt with was the one who took my kids.
4. Nothing good could come of this.
5. I can’t afford this.
6. I don’t have the time.
7. I am not valuable – others saw what I saw.
If you have done all of the steps well under “C” above and you are still getting stumped move on to plan B.
B. The Psyche of the Personal encounter
Many people do not function well over the phone. Many barriers can be broken down by a smile, a hand shake, a cup of coffee and a mono-a-mono (eye ball to eye ball) encounter.
Stepping into the witnesses world where he is the master is a confidence building experience for the witness. Standing at the door in which the witness is the king of his castle is empowering for the witness as you ask for his assistance that he can deny. In essence, his plaid couch is his throne and you are in his court asking for his assistance. You only need to bow to the authority to get what you want. It works.
C. This is not about you
You must also demonstrate to the witness that this case is not about you and invasions into his privacy will not be well received.
• It is not about his divorce
• It is not about his unpaid taxes for the last 15 years.
• His last DUI or
• The fact he has overstayed his visa.
These are all valid fear triggers that need to be stated by the lawyer directly to alleviate any anxiety that may be present. The lawyer must assume that they exist so hit them head on.
Example:
“I just want you to tell me what you know about my incident and no more – that it”
D. Bolstering Value
As before, it is imperative that a witness understand just how important they are. With this fact imbedded in the head upon your first contact with them, this knowledge will wear on them over time and in most cases their conscience will overcome their fear and anxiety to do the right thing.
E. The Subpoena approach
If you have exhausted your informal arsenal issue a subpoena and have them doggedly served. You are now definitively from the dark side and your signature at the bottom of the subpoena may just as well be a bloody finger print – unless you take preventative measures.
F. Cover letter encouragement.
To soften the blow of being served have the processes server attach your well crafted cover letter explaining why your hands were tied (without an ounce of finger pointing) and that you had not choice but to issue the subpoena because the court would expect it of you. The letter should also state that you are still available to accommodate any and all their needs and invite them to contact you with their concerns. This will bridge the gap before the potentially heated phone call.
G. Never quit until the fat lady sings.
In my 19 years of experience I have never had a witness slip away from me despite working on thousands of cases. My analysis of this result is one of persistence and doggedly pursuing what I want with the presence to understand the needs of witnesses and adapting accordingly.
The lesson to be learned is that if you are dropping the ball on getting difficult witnesses to perform there is a very strong likelihood that you have not fully come to grips with the needs of your uncooperative lay witness.