Handling the Most Common Witness Interview Objections

Most of the 12,000 plus witnesses that I contacted, during my 30+ years of conducting witness interviews, were willing to be interviewed.  

Being able to conduct those interviews informally, rather than through depositions helped keep litigation costs down, and allowed us to develop cases outside the prying eyes of opposing counsel.

And let’s face it, depositions are no longer effective. They allow opposing counsel to muddy the waters, confuse witnesses, disrupt their narratives, and weaken their testimony.

But, some witnesses, including those you may need to build your case, decline to be interviewed when they’re first contacted.

And that’s their right. There’s no obligation to be interviewed. 

But many witnesses, who initially say no to be interviewed, can be guided to a yes. Here’s how you can do that.

Suss Out the Reason for the Objection

If the witness you contact says no to being interviewed, and does so without giving a reason for saying no, try to get the reason behind the witness’s no.

You’ll need to determine the reason for the objection in order to address it effectively. To draw that out, you can say something like, “I just want to make sure I understand why you’re reluctant to speak with me about this.” And then be silent and wait.

Nature abhors a vacuum is true for witness interviews too. Standing in silence is difficult for most people. Let the witness fill that silence. The more the witness does that, the more likely you are to complete the interview.

There’s a couple of reasons for using this approach. By telling the witness that you want to understand the witness’s perspective, you are conveying empathy to that person being put in the position of being a witness. It’s not an easy place to be.

Also, I used the word reluctant for a specific reason. Unlike using the words refusing to, or won’t, reluctant keeps the door open and creates space to address the reasons behind the witnesses no. And during this part of the interaction with the witness you want to avoid closing the door to getting the interview as much as is possible. 

Notice also, that I used the phrase, speak with me, rather than be interviewed. The term interview sounds official and formal. Speaking with me sounds is more informal and that sounds better to a reluctant witness. 

The Most Common Objections and Whether to Address or Ignore Them

Once the witness tells you the reason for not wanting to be interviewed you have to decide whether to address the objection or to ignore it. And you do this by assessing the strength and authenticity of the objection. Here are the most common objections that I dealt with, and how I guided the witness into being interviewed:

•  I don’t know anything. One of the most common objections you’ll get from a witness is the claim “I don’t know anything”. This type of objection is best ignored. The witness doesn’t know what is or isn’t relevant to the case. You can politely respond with, “Ok. Then this won’t take long at all. I just need to run a few quick things by you.” And then ask your first question. Once the witness answers the first question, use the next few questions to cover what you need to cover. You can always circle back to go more in depth once you get the witness talking.
•  I don’t have time. Try to flesh out this objection out when you first introduce yourself by asking, “have I caught you at a bad time?” You want to address this objection squarely. If the witness responds with something like, “I have to take my kid to soccer practice.” Then respond that you understand, and ask for the best time to contact the witness. If the witness provides a time, say thanks and close out your contact. If the witness says he doesn’t know. Offer up two options within the next 48 hours. If the witness replies something more general asking if you’ve caught the witness at a bad time, like “I have a bunch of errands to run.” Respond by saying, that you understand time is limited, and then say, “this will only take a moment or so. I just need to run something by you.” And then go right to, “how did you realize something was happening?”
•  I don’t want to get involved. For this objection, you’ll need to flesh out whether there’s a safety concern causing this reluctance, or whether it’s the “hassle” of being involved that the witness is actually objecting to. A witness is involved whether he wants to be or not. The first approach to address this objection, should be to say that you’re talking to a lot of people to minimize the witness feeling singled out. If that fails to work, you can paint the picture of what it’s like to be subpoenaed to a deposition. Missed work, minimal witness fees, court reporters, videographers and lawyers in suits and ties versus an informal quick interview with you. On the other hand, if there is a genuine fear for safety, flesh that out. Real fear must be respected. You can’t promise to protect anyone, or be dismissive of legitimate fear. At that point, just ask if you can reach out in a couple of days, and then do so again, and again, if necessary. I’ve taken that approach when there’s not been a time crunch, as each time you reach out, the witness sees that you’re respectful of his concerns. Be patient, and be pleasantly persistent.
•  Outside interference. Sometimes a witness responds that he was told not to talk to anyone about the case. This objection is best addressed head on by asking who told him that. If the witness replies my attorney, ask for the attorney’s name, and then discontinue contact. If the advice came from a friend, or family member, handle the objection the same as you would handle the I don’t want to get involved objection. But, on occasion the witness will identify opposing counsel, which means opposing counsel got to the witness first, and is trying to keep you from getting the information the witness possesses. In that situation, reply that opposing counsel is prohibited from giving the witness legal advice since he doesn’t represent him, and the witness is free to speak to whomever he wishes. If that doesn’t work, let the witness know that he’ll likely be subpoenaed. And then paint a picture of what that’s like, missed work, court reporters and videographers, lawyers in suits, etc. And finish with or we can just run through this quickly right here and now. 

Most witnesses are willing to be interviewed. But, there will be times when a witness absolutely refuses to be interviewed, and then it becomes a judgment call as to whether the witness is worth being subpoenaed to a deposition. But, for the vast majority of witnesses, knowing in advance what the most likely objections are that you’ll face, helps you to prepare for them, and even to practice your responses.

If you’re a plaintiff law firm looking to maximize your clients’s recoveries, and your firm’s revenue, my programs, based upon what I learned conducting litigation investigations I for 30+ years, will help your in-house staff to conduct more effective case investigations that produce maximum results for your clients and your firm. Learn more about my services here.