Lately, there has been much focus on the world of private investigators, and I think we have Kim Kardashian to thank, at least in part. While private investigators can absolutely be retained to uncover background information on individuals, we are also commonly brought on as part of personal injury legal teams. We work with the lawyers and their clients to obtain witness testimony, evidence, and more. And, as we are currently seeing in the wrongful death lawsuit involving Michael Jackson and AEG, the witness statement is a vital part of the legal process. As a private investigator, my attorney clients have called on me to obtain a witness statement in more cases than I can remember. Why is this statement so crucial to almost every type of lawsuit?
To start, the witness statement serves several legal purposes. A private investigator’s job is to gather information or investigate the facts to help the attorney client bring the case to settlement in a civil matter. This information is crucial for the personal injury lawyer client to decide how best to proceed in the case. The second purpose of the witness statement is to preserve a record of a witness’s recollection of events that may otherwise be forgotten over time. We all know firsthand about the witness who forgets what he had for breakfast when it comes time for him to get on the stand and hiring a PI to secure a solid witness statement is a crucial part of the personal injury lawsuit process. Thirdly, this provides a means of impeachment if a witness should give conflicting statements during deposition or on the witness stand.
In many instances, the witness statement will be used as evidence in a case. Here is where the skill and legal savvy of the investigator is absolutely necessary and why your personal injury lawyer will only hire the best. If the investigator does not exercise appropriate caution while obtaining the statement, it may be deemed inadmissible as evidence and do serious damage to the case. The other side is already looking for a reason to have your witness’s statement tossed out. Therefore, attention to the law is key. The witness cannot be misled in any way as to whom the investigator is and/or whom he represents. The approach and tact of the investigator can make or break a case at this crucial point.
In my experience, the direct approach when first meeting a witness works best. For example, I introduce myself to the witness, inform them that I am a private investigator, and let them know that I work for an attorney. Because the word ‘attorney’ often puts people on guard, I let the potential witness know that this is merely a fact-finding visit, that I have no personal interest in the outcome of the case, and that they are in no way obligated to answer any of my questions and can end the interview at any time. Putting a witness at ease from the start often makes them a little more willing to speak with me, especially when they believe that the duration of the interview is in their hands.
Next up? This issue of the recorder. I’ve yet to meet a potential witness excited about the opportunity to have a conversation, however casual, recorded. My solution is to approach them with a self-deprecating joke. I reference my illegible handwriting and say that in order to be fully present for our conversation, and to be able to remember our conversation later, I’d like to record it. After addressing the record-setting formalities (name, employer, reason for the visit, etc…), I ask the witness to confirm that he or she understands that this interview is being recorded and that I have the witness’s permission to record his or her statements. The interview can now begin.
I also believe that allowing by the witness to tell me the story, as opposed to me asking question after question, it is much more difficult for the witness to claim the statement was made under duress or that he/she was intimidated by me. I have a list of key points that need to be addressed and will ask questions about points that may have been missed.
In the event a witness refuses to be recorded, I do not despair. I advise dictating the witness’s statement in front of the witness (presumably so as not to forget anything). At this point, the recorder must be turned on for the investigator to state for the record that he is dictating the statement made to him by the witness, regarding case, and in their presence. However, during this process, I will intentionally make a mistake so that the witness will correct me. After asking them if they know their statement is being recorded, I ask them to clarify what was wrong with the statement. At this point the witness usually recounts the statement and will even answer questions. By using this (quite legal) approach, I am able to get the witness statement recorded in the witness’s own words and voice and still meet the two-party notification requirements without lying or misleading the witness in any way. A private investigator has no authority to compel a witness to give a statement and at no time should the investigator give a witness cause to believe otherwise or do anything to cause the statement to be challenged as evidence in a case.
And as every personal injury lawyer knows, a strong witness statement can potentially make or break a case and I work closely with my attorney clients to ensure its seamless delivery.
Author: Chuck Cheesman, C Patrick Associates, Private Investigators