Should I Record A Witness Statement?

Again and again, we come across tape-recorded witness statements that plaintiff's attorneys (and others) have obtained very early in the investigative process of personal injury cases. The practice of many lawyers appears to be to hire an investigator, give him a list of potential witnesses and set him lose to record any and all statements he can get. This is akin to a surgeon opening up a patient without really knowing what type of surgery the patient needs (or whether she needs any surgery at all).

Any witness has the potential to provide both helpful and unhelpful testimony for the plaintiff's case. The goal is to put together as much helpful witness testimony as possible, while avoiding, or at least neutralizing to some degree, any harmful testimony. As obvious as that sounds, it is remarkable how often plaintiff's lawyers fail to take a strategic approach towards witness interviews and, as a result, end up with witness statements in their files that, if they were to land in the hands of the defense, would harm or even destroy the plaintiffs' cases.

Early on in the investigative process, the plaintiff's lawyer has probably not formulated a comprehensive theory of liability, and even if she has, that theory is likely to evolve as the case goes on. Even in the simplest auto accident case, there are subtleties which the plaintiff's lawyer cannot possibly anticipate within the first few days or weeks after an accident. This must be kept in mind during the witness interview process.

Lawyers are on the right track in wanting to locate and interview all potential witnesses as soon as possible. Witnesses have a tendency to disappear or forget important information, and if the other side gets to a witness first, that witness might be swayed to adopt a version of events that will help the defense. Once a witness adopts a particular version, it can be very difficult to get him to modify it.

Where strategy enters the picture, however, is in deciding whether, when and how to record a particular witness' statement. It should go without saying that if the initial (unrecorded) interview reveals a witness whose version of events supports the other side, there is no reason to document that interview in a way that could be discoverable. Neither the lawyer nor her investigator are under an obligation to create any particular record of a witness interview.

While recent caselaw makes it easier for a party to withhold witness statements on work product grounds (see Coito v. Superior Court (2012) 54 Cal.4th 480), there are still circumstances in which signed or recorded witness statements are discoverable. A simple recording of a conversation between an investigator and a witness may not be considered work product, particularly if the lawyer had no role in crafting the questions that the investigator asked. There is simply no reason to take a chance that a judge will order a harmful statement to be produced or that a harmful statement will end up being disclosed inadvertently (e.g., by ending up in an expert's file).

An adverse witness interview should result in a memo from the investigator to the attorney, with a detailed summary of what the witness had to say, along with the investigator's impressions of the witness' personality, effectiveness as a witness, etc. The witness obviously never sees this memo, and such a document is clearly work product, even under a restrictive interpretation of the work product doctrine.

Another reason not to turn on the tape recorder right away is that sometimes, when a witness' initial statement to an investigator does not support the plaintiff's case, the investigator can show the witness photos, other witness' statements, etc. that will result in the witness modifying his position. Most people do not have a photographic memory, and a witness will sometimes adopt a particular version of events without really having thought it through. People often appreciate the opportunity to understand all the facts and come to a correct version of what they actually saw and heard. Sometimes the correct version is that they really don't remember the events very clearly at all and therefore cannot take a definitive position. These preliminary discussions with witnesses should take place "off the record," before any decision is made about whether to document the witness' statement.

If the initial interview reveals a witness who supports the plaintiff's theory of liability, it is still a bad idea to simply turn on the tape recorder and have the witness start talking. First, the plaintiff's lawyer should make a decision whether or not to record the witness' statement right away or wait until the plaintiff's theory has become more crystalized. The latter approach might make sense if it appears that the witness will be available for re-interviews, that the witness is clearly aligned with the plaintiff (e.g., a co-worker or family member) and/or that the witness' testimony is unequivocally supportive.

If there is some question as to whether the witness will be available or willing to provide an equally strong statement later in the game, then it does make sense to record that witness' statement. But the goal should be to craft a statement (with input from the witness, the plaintiff's lawyer and the investigator) that sets forth a clear, accurate and relatively simple version of what that witness has to say regarding the incident in question. Simply turning on the tape recorder often results in a statement that is unfocused and contains extraneous information that could prove problematic down the line. The carefully prepared statement, on the other hand, will focus on only the relevant facts. There may be a subtle "negotiation" between the investigator and the witness as to how much detail to include, which is fine, but the end result is almost always better than with the recorded interview approach.

Once the witness statement has been prepared, the witness should be asked to carefully review it and note any changes that she feels are necessary. If the witness does make handwritten changes, she should initial those changes, and the investigator should ask the witness to sign the marked-up copy, rather than presenting her with a clean revised version. In cases that go on for several years, witnesses will sometimes forget that they reviewed and signed a statement. However, if the witness is presented with a document that not only contains her signature, but also her handwritten and initialed changes, that may trigger her memory or at the very least make it difficult for her to dispute that she signed off on the version of events reflected in the statement.

Effective witness interviews require a collaborative effort between the plaintiff's lawyer and investigator, in order to obtain and preserve evidence that will help the plaintiff's case. A tape recorder is a blunt instrument that is not suitable for the fine detail work that is necessary in order to prevail in difficult, contested liability cases.

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