The Fact-gathering Interview
The fact-gathering interview is simply the first discussion with the lay witness, or expert. A fact-gathering interview is the first time you are obtaining information about the case from this person. This interview might be your first contact with the facts of the legal matter. A fact-gathering interview might also be conducted after you have acquired significant information about the legal matter, as when you interview an expert witness for the first time.
There is no set format for a fact-gathering interview. Your specific approach to a fact-gathering interview will depend on a variety of things, including whom you are interviewing, your knowledge of the legal matter, and your own personal preferences. Every interviewer has a unique method of conducting an effective fact-gathering interview. Your preparation for the interview should include consideration of these factors.
The questions asked in a fact-gathering interview have two basic characteristics. First, the questions encourage the interviewee to state the facts without regard to the legal effect of those facts. Second, the questions should revolve around an orderly structure based on the legal effect of those facts. While these characteristics might seem to be at odds, they really are not.
There is a tendency to assume the witness has the same knowledge base and perspective you have. Resist this temptation; ask the witness to explain things even if you think you know the answer, and do not assume that the witness is aware of a fact. Above all, do not worry if the witness states facts at odds with your understanding. There will be plenty of time to address discrepancies later in the case.
Eliciting Facts Without Regard for their Legal Effect
A great majority of your fact-gathering interviews will be of persons with no legal training. These persons possess facts, but do not have the knowledge or training to determine the legal consequences of those facts. It is your job to gather all the facts from this person. This is accomplished by a combination of questions — some open-ended and some closed-ended.
An open-ended question is a question that encourages the interviewee to provide facts. Open-ended questions are unstructured and do not suggest that the questioner is interested in any facts. For example, you may be asked to conduct a fact-gathering interview of a witness to a car accident. You may start the interview with the question, “What did you see?” This is an open-ended question because it does not suggest any significance to anything the interviewee chooses to report.
One disadvantage of an open-ended question is obvious: the interviewee may provide inadequate or irrelevant information. The person may say, “I saw the one car hit the other car,” or “I saw a deer run across the road.” The first answer is relevant but not specific. The second answer does not appear to be relevant.
Another disadvantage is that responses to open-ended questions tend to combine facts with conclusions or commentary. A client who is asked to describe the circumstances of her firing might say, “They fired me because I am gay.” This statement is a conclusion masquerading as a fact. The interviewer really wants to know why the client reached that conclusion.
Everyday conversations offer a number of options to practice interviewing using open- and closed-ended questions — when asking a child about a school day, when discussing plans for the weekend with a coworker, or when receiving an oral assignment from a supervising lawyer. Use interviewing techniques to obtain the most information possible in each of these situations.
Fortunately, these typical responses to open-ended questions are not fatal to the fact-gathering process. In fact, they actually provide natural bridges to narrower questions that allow the interviewer to develop the facts more completely. For example, in the case of the person who says, “I saw the one car hit the other car,” the interviewer might ask, “Did the blue car hit the green car?” Further follow-up questions might include asking where in the roadway the car was struck, which parts of the cars made contact, and what observations were made about the damages to the vehicles.
This type of question is called a closed-end question. Closed-end questions do not allow a meandering response. They focus on facts and allow the interviewer to exert more control over the direction of the interview.
Most initial interviews follow this pattern. The interviewer asks a series of open-ended questions that provide an overview of the facts. The interviewer then asks closed-ended questions that fill the gaps in the previous answers. This move from general to specific is the hallmark of an effective fact-gathering interview. If the interviewer only asks open-ended questions, the responses may be of little value. On the other hand, an interviewer who asks only closed-ended questions may omit critical areas of questioning.
Questioning Within an Orderly Structure
A good interviewer always has an outcome in mind before beginning an interview. This does not mean that the interviewer decides what the response to the question will be. It does mean that the interviewer decides what questions need to be answered. In other words, the interviewer should have a clear idea of what information is needed. In the legal field, the required information is legally relevant facts.
The search for legally relevant facts does not mean that you must exhaustively research every issue before beginning a fact-gathering interview. In most cases, this is not feasible because of time constraints or because you do not know enough about the matter to perform the research. Even if you don't know the specifics of the legal issue, however, you can still make sure the interview has an orderly structure based on the legal effect of the facts.
Each fact-gathering interview has a broad legal purpose. You interview the client to determine if there are sufficient facts to support a claim of defamation. You interview a witness to see if that witness will support your client's version that the other driver ran the red light. You speak to an expert because the cause of the fire determines whether there is insurance coverage. In each case, there is a broad legal context; there are words and concepts that have
The orderly structure of the fact-gathering interview is defined by this legal meaning. When a client complains of defamation, your legal training should help you frame the structure of the interview. What was said? To whom was it said? Where was the statement made? When was it made? Was the statement false? This kind of legal analysis must be second nature to the effective interviewer. In addition to gathering the facts, the interviewer must think about what the facts mean in the context of the legal matter at hand.
The facts elicited from the witness should be credible. Credibility in the legal context is often a matter of evidence. The rules of evidence allow the credibility of a witness to be challenged on the grounds of prior criminal convictions or showing a reputation for untruthfulness. The paralegal should carefully explore these issues with the witness.
Of course, a credible witness is also a believable witness. The paralegal must constantly weigh the information from the witness against the known information in the file. If the facts given by the witness are not consistent with the known facts, it is necessary to examine the facts more closely.
Never give a witness the impression that you do not believe him. You may question a witness closely about the facts. You may ask the witness to repeat an explanation or version of events. Always ask these questions respectfully and without any indication that you believe or disbelieve the witnesses' statements. A witness who thinks you doubt his veracity is very dangerous to the client's case. He may hold back crucial information or he may simply change his story at an inconvenient time.
Assessing the Witness' Knowledge of the Facts
Closely related to credibility is the question of whether the witness actually knows the facts. Many witnesses think they know something they do not. A classic example is the supposed eyewitness to a crime who turns out to need glasses. Witnesses who are distracted or predisposed to a particular conclusion may not possess adequate knowledge of the facts. These deficiencies must be discovered in the interview. Careful questioning of a witness should explore what the witness knows and how the witness knows it.