Trauma Informed Interviewing Techniques
One Monday morning, two urgent voicemails greeted my return to the office. They asked something veiled like, “Is this the attorney who is handling a sexual assault case? I might have important information for you … [long pause] [click]” and “I really need to talk with the attorney who is representing a woman who was sexually assaulted during a massage. I got your name from the newspaper, and I want to make sure you represent the woman not the business. I might have information that would help your case … [click]”
I had that feeling you get when someone sends you a spam email with a virus attached saying you just won $1 million: “This is definitely a trap.”
I called her back, though, just to see.
She told me the exact story I wanted to hear to lock in negligence claims I spent the weekend worrying would not survive summary judgment. According to her, she reported to the owners of the business my client was suing that she had experienced a sexual assault identical to the one my client experienced only 3 months before my client’s assault. They did nothing in response. She contacted me because their attorney had called and communicated what the witness felt was intimidation not to participate in the case. She didn’t even know about the case before his intimidation call.
Honestly, it still felt like a trap. I talked with more experienced attorneys and we all agreed that defense counsel was nefarious enough that this could be some kind of plot … but what was the plot? And what if it wasn’t … ?
The story was so perfect that I began questioning myself. At deposition, did I forget to ask the business owners whether they had reason to know the massage therapist was a danger of sexual assault? I looked back at the deposition transcript, and sure enough, I had half a page with both owners, asking in every way possible whether they had any notice. Clear “no” answers to every question. Not only did the crucial witness exist, the defendants lied under oath.
The witness could only meet with me late at night after work because she didn’t want to lose her new job. Thankfully, a fellow member of Oregon Trial Lawyers Association[1] lent me her office conference room for the evening, and I drove to Portland from Eugene to hold a late-night, clandestine meeting with a woman who was more skeptical of me than I was of her. She must have asked me three or four times when we first met, “I just want to make sure … you represent the woman who was assaulted right? Not the business?”
She was terrified. She was afraid that talking about her assault could harm her and also that it could harm other vulnerable women.
This brings me to the first key fact to remember in any witness interview: The witness is having a trauma experience, just by talking to you. They might want to talk to you, you might be the nicest person ever to pass the bar, but unless they are a professional witness (and sometimes even then) the witness is still having a trauma experience in talking to you.
This is true in part because of power dynamics (lawyers are intimidating!) and at least in part because as Americans, most people in our communities have been raised on the value that talking about someone else’s wrongdoing is worse than the wrongdoing itself. Most of us were at least told as children, “If you can’t say something nice, don’t say anything at all,” and many of us were told something like, “We don’t talk to strangers about what happens in the family.” Many people who advocate for injured people live outside of this value and are even at odds with it, but it nevertheless it exists in our communities and informs how witnesses engage with us. Doctors don’t want to testify against doctors, neighbors against neighbors, employees against employers. We all want to be heard, but none of us wants to be a “tattler” or a “rat.” Talking about our experiences to a lawyer is so contrary to the core value of whitewashing that it is a trauma event for witnesses.
You may ask, “Why does it matter if the witness is having a trauma response? All they need to do is tell us what happened. I’m not their therapist.” The reason it matters is that when we have a trauma response, our brains go into a protective mode whether that mode is fight, flight, freeze, or fawn. [2] It limits our abilities to see, hear, speak, and remember. If a witness is in a trauma response, they may be telling you the truth of their memory or opinion, but it will be limited by their physiological response. If a witness feels safe, they will be better able to communicate and access their memories and executive functioning.
That brings me to the most important piece of advice I could ever give to lawyers about witness interviewing technique: Don’t interview witnesses. Hire a private investigator, unless you absolutely can’t. Our office works with Cynthia Liles, and we highly recommend her.[3] The reality is that private investigators are trained to gather information in a different way than lawyers are trained. They are less intimidating to witnesses, and their training makes them better at getting the information you need. While you may need to work with your PI to make sure they understand the key elements of your case, and they are not trained as lawyers, their training is invaluable. Here are the additional most crucial reasons that any lawyers involved in investigations should hire a private investigator:
1. If something happens to a witness or the witness changes testimony, the private investigator can testify at trial. You cannot.
2. You are an advocate, and your questioning will consciously or unconsciously reflect your adversarial position. A private investigator is more likely to be able to encounter the witness from an unbiased perspective and elicit reliable testimony. More than once, I have watched an attorney interview a witness with closed-ended questions (“wouldn’t you agree the light was red when the defendant approached the intersection?”), only to learn later that while the witness “would agree” with the statement “the light was red at the scene,” the witness also “would agree” with the defendant’s position that made the color of the light irrelevant. Closed-ended questions filter out new information. Private investigators gather new information.
3. You can’t be everyone everywhere all at once. If witnesses are waiting for your call back because you are arguing a summary judgment motion in another case, there is the potential that you may lose those relationships through no fault of your own. Private investigators are experts not just at fact gathering, but also at relationship building. While you are lawyering, a private investigator can make sure you know not only what a witness will say, but whether the witness is planning to take the bus to the deposition when you could arrange a ride instead. They can help you build a trustworthy connection that makes sure the witness shows up for the case.
If you absolutely must interview witnesses yourself, the CDC relies on six principles[4] to make interactions most effective with people experiencing traumas (like the trauma of talking to a lawyer!):
Each of those principles represents the foundation of successful technique in witness interviewing, whether your witness is a sexual assault survivor, a truck driver, or a brain surgeon.
1. Safety and Transparency. If you are interviewing someone over the phone, set parameters for the call that create a framework of safety so that the witness knows what is coming. If your client knows the witness, and they have a positive relationship, have the client make the connection to establish safety for the witness. If not, make sure the witness knows who you are and your relationship to them. For example, “Hi, I’m Meredith Holley, and I am a lawyer who represents [client]. I think you know [client]? I’m hoping to ask you some questions, and before we do because I’m a lawyer, I’d like to tell you a little about what it means to talk to me. Is that okay with you?”
You might hate the idea of asking the witness if something is okay with them – after all, you could just subpoena them and they’d have to testify, right? But, if you get the witness to start saying “yes,” they will have the sense that they are choosing to talk to you, which will make them more open to disclosing the entirety of what they know. It does not benefit you to alienate a witness, and getting active consent for the interview is an important safety step.
Once the witness consents, make sure to accurately explain that you are not that witness’s lawyer. Be transparent about what you can and cannot do for the witness. Don’t lie or over-promise. There is no benefit to that person being confused about your relationship to them. If they mistakenly believe you represent them when you do not, aside from potentially inviting an ethics complaint, this could lead to an experience of betrayal later that could impact their testimony. If they mistakenly believe they can share information with you that you will not repeat to your client, similar issues could come up.
If you are interviewing a witness in person, safety is an even more tangible issue. Make sure the witness has access to an exit and that you do not block the exit. Especially if there is any additional cultural power difference between you and the witness above your status as a lawyer (for example, if you have any of these or other privileged characteristics: cisgender, heterosexual, white, male, able bodied, and your witness does not) it is especially important not to trap your witness in a room with no access to an exit because dominant characteristics might play a part in whether the witness feels safe enough to disclose information to you.
Witnesses, like other humans, need access to water, food, shelter, respectful communication, and exits. If you trap a witness in a room and interrogate them, they may agree with you to appease you, but there is no telling what they will say after you release them from witness hostage.
If your questions have the tendency to invade any levels of privacy like mental or physical health, family relationships, personal beliefs, or other systems that people typically hold as sensitive, ask consent for your questions at each new level of intimacy. You don’t have to be annoying about it or apologetic, but simply saying, “Is it alright if I ask you about your conversations with your doctor?” gives the witness enough control to establish a certain amount of safety.
2. Peer support and mutuality. One of the most common rules many of us are used to hearing is to prevent witnesses from cross-contaminating each other’s testimony or losing their own viewpoint because they have heard the facts of a situation recited too many different ways. Investigation witnesses in employment cases are commonly, though in many cases illegally, instructed not to talk about their complaint during the course of an investigation. While I do not take issue with the importance of maintaining the integrity of a witness’s testimony, this concern can go too far. Often, one way for a witness to feel less disadvantaged or traumatized in an interview is to allow them to bring a support person. While that may create attorney-client privilege concerns with a client, because privilege does not apply to witnesses anyway, a support person can create the safety the witness needs to fully access their memory or opinion.
The rules you set to create a safe container for the witness may change if they have a support person, but that does not mean the support person is a problem. For example, many witnesses who have disorders that interfere with processing, like post-traumatic stress disorder or attention deficit disorder, benefit from a spouse or loved one being present in an interview. Sometimes, attorneys have concerns that the support person may interfere with the witness’s testimony, and that is a valid concern.
It can be helpful to set clear expectations with any support person such as, “I am so glad you both were able to be here today and I know it is important for [witness] to have [support person] present. My only concern in having support people present for witness interviews is that [support person] will not be allowed to testify in the case. It can be really difficult to watch someone you care about be in a situation like this, but I’m going to ask that as much as possible we give [witness] the opportunity to tell their story and answer the questions on their own, even if you want to jump in. Remember, all I’m looking for is whatever [witness] remembers. There are no wrong answers here. We’re just looking for the truth.” If the support person often jumps in to fix the witness’s answer, that is good information for you to know about the reliability of both the witness and the witness’s dynamic with the support person. This person may not be a reliable witness if they consistently rely on someone else’s memory.
If and when you run into issues with the witness’s reliability or inconsistencies with testimony, remember that you are an expert about the law, but the witnesses, including your client, are the experts about the facts. You are mutually collaborating to create a clear, truthful picture of what happened and why it violates the law. If there is a hurdle in a case related to witness testimony, you will have a better result if you are open respecting the witness’s expertise on their own testimony and being curious where you don’t understand than if you try to ram their facts into the expectations of the law without regard to discrepancies. If something in the testimony sounds weird or inconsistent to you, it will also sound that way to a judge or jury. Inquire into the facts from the people who know the facts until you understand them.
3. Empowerment and Culture. If a witness feels heard and empowered to tell the truth confidently, they will be persuasive to a judge and jury. Listening without talking is the simplest, hardest, and most important technique in interviewing witnesses. It invites a witness to feel heard and empowered to tell their story. If you listen without talking, the witness may tell you many things you do not need to know, but they will also feel safe enough to tell you the truth of their experience.
It will also, somewhat magically, make the witness respect you more. Once, I spoke with a witness and timed myself to only ask simple, open-ended questions for 45 minutes before I could offer any statements or other perspective. At the end of the 45 minutes of me barely talking, the witness said, “Well, I can really tell from this conversation that you’re an expert at what you do.” It is rare for people to feel heard, and when they do, they develop respect for themselves and for the listener.
Find out what you can about the witness ahead of time in terms of their cultural background and worldview. If you can demonstrate respect for the witness, even if their identity characteristics are different than yours, it will contribute to the witness’s overall sense of empowerment and willingness to contribute their facts to your case. Cultural identity can mean the community in which a person was socialized, but it can also mean their socio-economic status, religious beliefs (if that is important to them), sex, sexual identity, sexual orientation, race, ethnicity, age, weight, and other characteristics that are important to them. Sometimes, you can get some cultural information from your client about this, other times, you know it by the context of the case, other times social media can help you understand the witness’s culture and identity.
Do your research on the person … and then forget everything you learned ahead of time and just listen. Often, when we learn about a cultural viewpoint, we jump into stereotyping. For example, don’t show off your cultural understanding to the witness. I have seen lawyers say things like this to a witness: “I read about Japanese culture before we talked, so I know Japanese men really care about saving face.” That kind of statement stereotypes your witness in a way that will alienate and embarrass them, the opposite of helping them save face. If there is a key interest that you’ve learned the witness may have related to their cultural or personal identity, find a way to confirm whether the witness personally has that interest if it may become important to the case.
When I met in the dark of night with my clandestine surprise witness, a number of factors worked together to make that experience key to a good resolution of the case for my client. One was that I consistently checked in regarding the witness’s safety. She was very fearful for her financial and physical security because both had been impacted by her sexual assault. We met in a space that felt safe to her, where she had easy access to a door, and I sat with her and listened to her story for hours, into the evening, before talking through what it would look like for her to contribute to the case. I wrote up a declaration for her to sign while we were sitting there so that she could confirm I had understood her experience correctly. I gave her space to think about it, sleep on it, and ask more questions before she signed the declaration. Most importantly, I confirmed with her the reason she would want to be a witness in the case: To protect other women. That value, which is consistent among most, if not all, sexual assault survivors willing to testify in another person’s case, was ultimately the cultural and personal value that was key to her following through as a witness, providing crucial evidence and testimony in the case.
After reading my motion for sanctions, nefarious defense counsel called to apologize, saying he had “never been so disappointed in clients” in his long career. While that may or may not have been true, for me it reaffirmed that a good witness and a good witness relationship can make or break any case.
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This article is accepted for publication in Oregon Trial Lawyer Magazine for Summer 2023.
[1] Thanks, Blair Townsend! You’re a gem. [2] For more on trauma, I highly recommend these books: Complex PTSD: From Surviving to Thriving, by Pete Walker; Waking the Tiger, by Peter Levine; Trauma and Recovery, by Judith Lewis Herman (also a good audiobook listen). [3] Liles Investigations, liles.cynthia@gmail.com, 503-334-6866, lilesinvestigations.com [4] https://www.cdc.gov/orr/infographics/6_principles_trauma_info.htm
