Never Take a Witness at His Word … Ever
The Value of Written Statements
Several months ago, I witnessed a multi-vehicle accident. To be more accurate, I narrowly avoided being smashed to bits by a tanker truck. After the accident, I hung around to give a written statement to the State Trooper who was investigating the accident. I think I probably gave him the best written statement of his career. For one thing, as I am all the time handling accidents, I knew exactly what I would want to read in a witness statement and the specificity that would be helpful later. For another, with three commercial vehicles involved in the accident, there was a high percentage chance that one of them would be insured by one of my clients.
But here’s the trouble. Anyone else who saw the wreck would have done so from a different angle and would like have a different report of what occurred. Furthermore, witnesses rarely stick around the scene of an incident long enough to give a written statement. If the lawyers are lucky, witnesses will have left their names and contact information so that lawyers who are litigating a case can contact them a couple years down the road when suit gets filed.
Having witnesses to any incident, whether it stems from a car wreck or an employment dispute, can be a boon to your evaluation of a case. Witness testimony can provide key evidence as an unbiased account of an incident you need to determine liability. However, without a way to hold a witness to his prior accounting of an incident, you can’t entirely trust him not to change his story. And that can be a problem.
Trusting a Witness Can Create Problems
When I was hired to defend a truck wreck that involved four vehicles, I pulled up the accident report to discover several eye witnesses to the incident. I began to call them in order of appearance to hear what they had to say. It became clear to me there was a strong possibility my truck driver client hadn’t done anything wrong and there was nothing he should have done differently to avoid the accident. One of the most favorable accounts came from another truck driver. In fact I couldn’t believe my luck.
A few months later, I got approval from my client and scheduled the witness’s deposition. He was based out of Kansas, so plaintiff’s counsel and I flew into Wichita to take his deposition. I was certain this was going to make my case. But once I started questioning, the tenor of his responses changed dramatically. He couldn’t have given a more neutral account of the accident. It wasn’t that he told a different story than what he had told me previously. It’s just that he hedged on everything and refused to commit to a position about what had happened.
This was my fault. Immediately after first speaking with him, I should have had the witness give me a written statement or even sign an affidavit. If he had already committed to a position but attempted to change his tune at his deposition, I could have either forced him back onto the rails or been able to impeach his deposition testimony with his prior statement. Since I had failed to get a written or recorded statement from the witness prior to taking his deposition, the trip turned into a waste of my time and my client’s money. That was an uncomfortable conversation to have, particularly because it was my fault for having trusted that the witness would testify at his deposition consistent with what he had told me over the phone.
If you want to rely tomorrow on something a witness told you today, you had better get it recorded or in writing.
Photo by Alexander Lyubavin.