Adapting to the Situation

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 149-152

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 Interview Witness

An interviewis 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

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