Adapting to the Situation

AuthorDaniel Small
ProfessionIs a partner in the Boston and Miami of ces of Holland & Knight LLP
Pages149-152
Whatever your client’s role is in a matter, he or she can be a witness under
a wide range of circumstances. Some of the variables include: Where the
questioning will take place? Who else will be present? How will notes be
taken (if at all)? Will the procedure be taken under oath? and What will
happen afterward? In addition, there are wide variations depending on who
the witness is: a client versus a nonclient, a vulnerable witness, a witness
for whom English is not the primary language, and more. Understanding
these categories and differences can help guide your witness’s responses.
This chapter will address some specic circumstances. Subsequent chapters
will discuss some of the most common witness environments.
The Inter view Witness
An interview is generally informal in the sense that there is no judge or jury
and it will not be recorded or transcribed. However, do not be fooled by that
apparent informality. This is a very serious, and sometimes risky, process.
Every question from the questioner, no matter how friendly, has a purpose.
Every statement the witness makes, no matter how casual, may be written
down and used. It is a difcult, often articial and unnatural, procedure
that demands your client’s careful attention and preparation.
Although an interview is not “sworn” (the witness will not take an oath),
it should be treated as if the witness were under oath. Lying in an interview
like this is foolish and dangerous. It can be used against a witness in various
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Chapter 25
Adapting to the Situation
Small_PrepWitness_20140403_13-27 Second Pass.indd 149 8/12/14 10:20 AM

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