COMMERCIAL LITIGATION FOR LEGAL SUPPORT STAFF PAPER 6.1

Handling and Interviewing Witnesses

These materials were prepared by Michael D. Shirreff of Sugden McFee & Roos LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, April 2012.

Michael D. Shirreff

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HANDLING AND INTERVIEWING WITNESSES

I. Introduction ....................................................................................................................................................... 1

II. Identifying & Interviewing Witnesses ............................................................................................................ 2 A. Finding Witnesses ............................................................................................................................................................................ 2 B. Timing of the Interview ................................................................................................................................................................ 2 C. Preparing for the Interview ......................................................................................................................................................... 3 D. Practical Considerations ............................................................................................................................................................... 3 E. Witness Statements ........................................................................................................................................................................ 3

III. Ethical Issues Arising During Interviews ....................................................................................................... 4 A. No Property in Witness ................................................................................................................................................................. 4 B. Witnesses Represented by Counsel ........................................................................................................................................ 4 C. Taping Witness Interviews .......................................................................................................................................................... 5 D. Should You Obtain an Affidavit? ............................................................................................................................................. 5

IV. Rule 7-5: Uncooperative Witnesses ................................................................................................................ 6

V. Appendix APractical Interview Tips .......................................................................................................... 7

I. Introduction One of the most important duties of trial counsel is marshalling the evidence on behalf of your client. Witnesses are one of the foundations upon which any case is built. In large part, witnesses will be the source of the evidence from which the court will make findings of fact. Locating and interviewing witnesses is often a taskat least at the initial stages of a caseperformed by junior counsel and paralegals.

The fact-finding process of any case is an important stage that should not be undervalued. The information derived through witness interviews can be critical in assisting counsel to assess and evaluate the strengths and weaknesses of a particular case. This is turn impacts the advice counsel will provide the client and oftentimes sets the strategic direction in which a case is taken.

This paper is intended to provide an overview of some of the considerations which may be relevant to the handling and interviewing of witnesses.1

1 My thanks to Kevin Loo of Nathanson Schachter & Thompson LLP who allowed me to utilize portions of a paper

he prepared on this topic for CLE in June 2006.

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II. Identifying & Interviewing Witnesses

A. Finding Witnesses There are two elements to this task: 1. identifying potential witnesses; and 2. locating these individuals to arrange interviews.

As a general rule, most counsel agree that the best practice is to be as thorough as possible in the fact investigation process. Not only should the key observers be interviewed, but it is usually worthwhile to ensure that perceived peripheral players are also identified and interviewed. In many cases, witnesses who are initially thought to be less important will have critical evidence. Even if they have little or no relevant evidence on the key issues, peripheral witnesses can sometimes provide you with information that may assist you prepare to interview the main players.

It is important to interview potential witnesses as early in the litigation as possible.

The most obvious sources for identifying potential witnesses are your client and the documents (of both your client and the opposing party). It is also quite common that additional witnesses will be identified through the course of examinations for discovery. In a commercial litigation matter, clients are typically able to provide counsel with a list of the important witnesses, as well as their contact information. In a motor vehicle case by contrast, the witnesses may be strangers to your client and the best way to identify these witnesses will be through the documents, such as ICBC statements or the police report.

If you are not able to easily obtain the names and contact information of witnesses, there are a few different ways that people can be located:

(a) Internetit is remarkable how much information is on the internet these days. Websites such as Facebook and LinkedIn (which is by no means an exhaustive list) can often be used to determine the email address and/or business contact information of a witness;

(b) Skip tracersindividuals who specialize in locating people whose whereabouts are unknown. It is common to use skip tracers to find a party who you cannot locate to serve material, but skip tracers are also a useful resource as part of an effort to locate witnesses;

(c) Private investigatorssimilar to skip tracers, but typically have resources and experience beyond those used in skip tracing. Using private investigators can be quite an expensive process so this option is generally recommended only for critical witness; and

(d) Advertising/postingoften in the context of a motor vehicle action, a last resort might be to post an ad in the newspaper or put a notice in a conspicuous location near the accident site requesting that any witnesses contact you.

B. Timing of the Interview A well-considered view of the strengths and weaknesses of a clients case can only be determined once counsel has an understanding of all of the potentially relevant evidence. Most counsel will agree that it is important to interview witnesses as early as possible (but in any event well before a trial). There are two reasons for this:

(a) the memory of a witness tends to fade or distort as times passes. As a result, the earlier you interview the witness the more likely they will have the events fresh in their minds; and

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(b) the earlier you acquire knowledge of the case, the sooner you can formulate and/or test the reasonableness of your theory.

Although it is best practice to interview a witness as early as possible, there may be special circumstances in the case which impact the timing of the witness interview (such as an impending termination of an employee who may be a witness in an employment case).

C. Preparing for the Interview It is critically important that you prepare before interviewing the witness. Ensure that you have reviewed the pleadings and are aware of the issues in the action. Give thought to the issues raised in the pleadings of your opponent. Consider the essential elements of your clients case and that of the other side to ensure that you are aware of all of the areas that should be canvassed with the witness.

At the same time, you should have an understanding of the evidence that has been given by other witnesses. It is sometimes useful to have conducted an investigation (through your client or through other witnesses) about the particular witness who you will be interviewing. Some very quick internet searches may help you learn something about the background of the witness which could assist you in the interview.

It is also good practice to prepare a list of questions or topics on which you would like to canvass with the witness. In appropriate circumstances, you might even send a package of material to the witness for their review prior to the interview (after you have made initial contact with them).

Finally, if you anticipate that you may not receive cooperation from the witness, be cognizant of the potential for this in your preparation for the interview. If no cooperation is forthcoming, try to obtain information that might assist in an application pursuant to Rule 7-5(1) (see section IV below).

D. Practical Considerations Interviewing witnesses is an art, not a science. No one style is best. Whenever possible, turn your mind to what you hope to accomplish with each witness. Give consideration to peripheral matters such as the manner of your approach to the witness, the environment for the interview, the form and content of your questions and the general structure of the questions you would like answered. Witnesses are generally more cooperative if you are able to build a rapport and level of trustoften you will catch more flies with honey than with vinegar.

A list of practical interview tips is set out in Appendix A.

E. Witness Statements When interviewing a witness, it is important that you take legible and detailed notes. Sometimes it assists to also dictate a memo reviewing the evidence of the witness immediately following the interview, as often you may miss certain information during the note-taking process. In practical terms, a dictated memo will also be easier to interpret should there be a lengthy period of time between the interview and the trial.

In addition to taking notes, it is widely regarded as good practice to obtain a signed statement from the witness. At the end of the interview, ask the witness if he or she would be willing to provide you with a signed statement. Assuming they agree, prepare a typed statement based on your notes and the information they gave you and then send the typed statement to the witness for his or her review.

It is good practice to send the statement with a letter indicating that you have prepared the statement based on the information they provided, asking them to confirm that the information is correct and giving them the opportunity to make any changes necessary to ensure the statement is entirely

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accurate. Sending the statement by email in an electronic format (MS Word) and giving the witness the opportunity to make changes to the document itself is often the most practical approach. Once the witness is satisfied with the statement, ask him or her to sign and return it to you.

Obtaining signed statements may be important in the litigation for two reasons:

(a) having a signed statement may provide a safeguard or protection against the witness becoming uncooperative or attempting to change his or her story as time evolves; and

b) the statement may be used for the purposes of impeachment should the witness give contrary evidence at trial.

In certain circumstances, a witnesss refusal to provide a written statement may also be useful for cross-examination at trial.

III. Ethical Issues Arising During Interviews There are a number of ethical issues which may arise during the course of a witness interview.

Chapter 12 of the BC Professional Conduct Handbook (the Handbook) addresses lawyer supervision of employees. Rule 5 indicates that legal assistants may perform delegated tasks, but the lawyer has full professional responsibility for any such delegated work. Rule 6(b) requires that a lawyer must not permit a legal assistant to do anything that a lawyer is not permitted to do.

A. No Property in Witness There is no property in a witness. You are entitled to seek information from any potential witness, whether or not they are under a subpoena (subject to the rule requiring you to go through counsel if the witness is represented).

Chapter 8, Rule 12 of the Handbook states: There is no property in a witness, and a lawyer may properly seek information from any potential witness, whether or not the witness is under subpoena.

B. Witnesses Represented by Counsel If you know that a witness is represented by counsel, you must notify that counsel before conducting the interview.

Chapter 8, Rule 12.1 states: If a lawyer knows that a potential witness is represented in the proceeding by another lawyer, the lawyer must:

(a) notify the other lawyer before contacting the potential witness; and (b) if the potential witness is a party to the proceeding, make no contact except

through or with the consent of the other lawyer.

There are special considerations at play when the party on the other side of the case is a corporate entity. The question can become whether an employee of that corporate entity should properly be regarded as a witness or a party to the litigation.

The Ethics Committee of the Law Society of BC considered this issue in September 2000. The Ethics Committee published a bulletin which states that the anti-contact rule should prohibit contact with only those officials who: have the legal power to bind the corporation in the matter; or are responsible for implementing the advice of the corporations lawyer; or whose own interests are directly at stake in

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the representation. Should you face this potential issue when deciding whether to contact a witness from a corporate entity, consider the potential problem and discuss the best course with senior counsel.

C. Taping Witness Interviews In some circumstances, especially where the interview is expected to be lengthy, complicated or involve technical elements, you may wish to record the interview. Tape recording may also be used in circumstances where you expect it might be difficult to obtain a written statement from the witness.

Tape recording interviews can be a useful tool. However, you should not record an interview without obtaining the express consent of the witness. The Canadian Bar Association Code of Professional Conduct, Chapter XVI, Rule 5, prohibits lawyers from tape recording any conversation without informing the other person that they are doing so.

D. Should You Obtain an Affidavit? It is not advisable to obtain an affidavit from a witness prior to trial unless there is an intention to use the affidavit for a specific purpose in the litigation (such as a summary trial application) and only if the litigation has already been commenced.

Obtaining a sworn statement from a witness prior to trial can potentially compromise the fact-finding process by setting up serious consequences should the witness wish to testify truthfully in conflict with the previously sworn statement. This principal has been described as entangling the conscious of the witness and it is not a practice to be followed.

In Golden Capital Securities v. Holmes, 2001 BCSC 1487, Mr. Justice Edwards considered an application to prevent a witness from testifying at trial on the basis that counsel had previously had the witness swear an affidavit that embraced the testimony that was to be given at trial. Although the application was dismissed, Mr. Justice Edwards commented on this issue as follows (beginning at para. 5):

The practice of taking witness statements in sworn form was disapproved in a number of authorities which are referred to by Mr. Justice Fraser in Pierre v. Mount Currie Indian Band 1999 CanLII 6115 (BCSC), (1999) 61 B.C.L.R. (3d) 381.

Fraser J. concluded it is improper to have a prospective witness provide a statement under oath, before trial, if there is no intention to use it as primary evidence. This is because binding a witness to a statement sworn before trial compromises societys interest in obtaining truthful evidence at trial by setting up serious consequences for a witness who wishes to testify truthfully when the truth is in conflict with the sworn statement.

In disapproving this practice, Fraser J. concluded that perhaps these reasons will serve as a guide to the treatment of witnesses in future.

This fettering of a witnesss conscience potentially undermines the credibility of a witnesss testimony at trial.

A further consequence of the practice is that it potentially raises a number of collateral issues about how the affidavit was prepared and the extent to which the witness was helped to recall facts disclosed in the affidavit.

If anything, the taking of the affidavit from Mr. Young compromised the plaintiffs case by opening avenues of inquiry on cross-examination with the potential to undermine his credibility.

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I agree the practice of taking an affidavit from a prospective witness to nail down the witnesss testimony at trial is to be disapproved for the reasons expressed by Fraser J.

IV. Rule 7-5: Uncooperative Witnesses The list of witnesses to be interviewed should not be limited to only those witnesses thought to be friendly to your client. It is important to ensure that your investigation touches on all aspects of the underlying case, including hostile witnesses. Sometimes, you may find that a hostile witness is more cooperative than you anticipate. Further, there are steps that can be taken to obtain evidence from that witness should it be necessary.

Rule 7-5(1) allows for a pre-trial examination of a witness: Order for examination

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer's costs of the person relating to the application and the examination.

The purpose of this rule has been described as intending to provide an investigative technique to facilitate full disclosure of the facts before trial, thus avoiding a party being taken by surprise at trial.

Rule 7-5(3) sets out the conditions for obtaining an order for examination of a person and not a party to the proceedings. The application for the order must be supported by affidavit evidence setting out: 1. the matter in question in the action to which the evidence of the proposed witness may be material; and 2. the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing.

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V. Appendix APractical Interview Tips Prior to the interview:

Preparebe as familiar as possible with respect to the pleadings and evidence in the case. If appropriate, prepare your questions in advance and/or chronologies and timelines to assist in ensuring that the matter is clear in your head.

During the interview:

Introduce yourself properly (including name and who you represent) and provide a brief explanation to the witness of the action and the purpose for your call.

Ensure the witness is clear about who you represent before proceeding with the interview.

If you intend to record the interview, seek consent of the witness.

Be polite, respectful and friendly. Be courteous and patient. Do not be intimidated by hostile witnesses. If the witness will not cooperate at all, ask if he or she will respond to questions in writing.

Listen attentively and take detailed and accurate notes.

Try not to interrupt the witness unless they are completely off track.

If necessary, ask the witness to repeat or clarify certain information.

Where appropriate, use diagrams, maps and photographs (or other illustrative aids) to assist in your interview process.

Make sure you ask the witness for copies of any relevant documents they may have.

At the conclusion of the interview:

Make sure you have obtained complete contact information for the witness (address, phone number and email).

Take a minute to ensure that you have canvassed all areas with the witness.

Perhaps ask if there is anything else that the witness believes to be important which you have yet to cover.

Ask the witness whether he or she would be agreeable to signing a statement summarizing the evidence.

Provide your contact information to the witness and ask them to contact you should they have any questions or recall anything further.

Advise the witness of the trial date (if scheduled) and inform witness that they could potentially be called upon to testify.

Post-interview:

Ensure your notes are complete, legible and retained in the file.

In some circumstances, it may make sense to dictate a memo to file following your review of the evidence.

Send the typed statement to the witness as quickly as possible in an effort to have the statement signed (with an appropriate cover letter).

Consider sending a subpoena to the witness.

Make a note to follow up with the witness should the trial date change.