When you think about what a legal assistant can do for you, is interviewing witnesses something that comes to mind? Why would you want your legal assistant to interview witnesses? The answer is not that a legal assistant takes a really good witness interview, even though we do! Answer: You will not be placed in the position of becoming a rebuttal witness at trial if the witness does not testify consistent with the witness' statement.
You know how important it is to be thoroughly prepared to take a witness statement. Effective communication between you and the legal assistant is crucial at all stages of a case, but is particularly important in the interviewing process. You should discuss with the legal assistant specific issues which are critical to the prosecution or defense of the case.
You should ask your legal assistant to spend time reviewing the allegations of the complaint and other reports, notes from the client interview, other witness statements and to brainstorm about the case. If he/she prepares interview questions or an outline of important points for your review before actually presenting for the interview, communication problems between you and the legal assistant can be resolved at that time. If a tape recorded interview is being conducted, you may want the legal assistant to add additional points to the checklist. You can then be assured there will be on tape an introduction by the legal assistant, the date of the interview, and consent asked and given to record.
If your legal assistant does not have business cards for identification purposes, you might want to consider having cards printed before he/she presents for a witness interview. Canon 5 of the Code of Ethics and Professional Responsibility of the National Association of Legal Assistants (NALA) provides that a legal assistant must disclose his or her status as a legal assistant at the outset of any professional relationship with a client, attorney, a court or administrative agency or personnel thereof, or a member of the general public. This disclosure must be made by any certified legal assistant, NALA member or member of any NALA affiliate, such as LAWV. You should encourage the legal assistant to explain his/her role in the firm and the limitations imposed upon the legal assistant as a non-lawyer.
After the initial interview, your legal assistant should go over the interview answers again and read back his/her account of the statement to the witness. At that time your legal assistant may want to make additional inquiry about certain responses which need clarification. This also gives the witness the opportunity to clear up any misunderstanding. Your legal assistant should then review the interview outline/checklist again to make sure all the necessary points have been covered. Your legal assistant will want to wind up the interview by asking if there is anything the witness wants to add to the statement and if the information given is consistent with testimony which will be given by the witness under oath if the case goes to trial. Depending upon your preference, your legal assistant may also consider rewriting the statement and asking the witness to date and sign the statement. If a recorded statement is being taken, your legal assistant should do a "run through" with the witness before actually starting the recorded interview.
Finally, your legal assistant should conclude by asking the witness for a complete mailing address, physical address, telephone number and names of relatives in the immediate area for purposes of jury selection and to help locate the witness in the event he/she moves from the area before trial.
Interviewing witnesses is one of the fourteen duties set forth in the Oklahoma Supreme Court decision of Taylor v. Chubb, 874 P.2d 806 (Okla. 1994) that a legal assistant may bill for performing. The end result of utilizing your legal assistant's skills is a cost savings to your clients and more efficient use of your time!
About the Author
Cheryl J. Given, CLA, attended Glenville State College, has a legal assistant certificate from the University of Charleston and became a certified legal assistant by examination in September, 1990. She has been employed as a legal assistant since 1985 and has been employed at the law firm of Busch & Talbott, L.C. since August, 1992. Cheryl is the past NALA/CLA Liaison and the immediate past Region III (Clarksburg) Director for Legal Assistants of West Virginia, Inc.