How To Get In The Door

How To Get In The Door:
Getting the Difficult Interview

Larry Carlson and Eric Mason
2006 NDIA Conference
San Francisco, CA

I. Before leaving the office: There is no substitute for preparation
• Integrate thoroughly into the case and the defense team
• Know the discovery cold
• Understand where the case stands procedurally
• Know what representations have been made in court
• Know what has been reported by media
• Choose your interview targets strategically: Which witnesses, in what order?
• Know the witness before you hit the porch (not just prior statements but, Who is this person? Litigation history? Bankruptcy? Divorce? Criminal history?)
• Understand (if possible) the enmities and politics among the players and where your target is situated
• Understand your target’s liability, if any, and prepare to address it

II Before you hit the porch: More preparation
• Figure out what to wear
• Figure out when to show up
• Figure out what to take (Briefcase or reporter’s notebook in back pocket?
Discovery/prior statements to cops? Photos? Other props? Interpreter?)
• Consider how you will carry yourself, what tone to adopt
• Be prepared to distance yourself from the client and counsel if necessary
• Be prepared to make strategic disclosures: You gotta give a little to get a little
• Prepare to distinguish yourself from the government at every turn, especially with
key witnesses or victims since they are often mistreated or ignored by
overburdened government attorneys and agents

III On the porch: getting the non-interview
• Stay relaxed and adaptable
• Remember that all information is good information
• Show sympathy, if appropriate, for the difficult position the witness or victim is in
• Remember that extreme hostility and other adverse responses by witnesses can be used in court to establish bias or an agenda on the part of the witness, so take careful note of it
• Be mindful of how your response to a hostile reception might play out if the witness calls the feds or later hits the stand for the government, and act accordingly
• If you are perceived to be making an effort to minimize the psychic or physical damage in the case, a witness who declines an interview may appreciate your effort and return the favor from the stand in the form of mitigated adverse testimony
• If the door is being closed, ask your most critical question or consider what provocative comment you can sneak in that might plant a seed
• Burn no bridges: If you are perceived as fair and understanding, the witness may relent on the spot or may become open to an interview down the road
• Make sure your behavior in the field does not become the subject of misconduct or witness intimidation claims in court

Parrying government attempts to obstruct justice:
• The government does not own witnesses in criminal cases
• Explain to the witness their rights as a citizen
• If the witness says they’ve been ordered not to talk, learn the particulars of this for use in court
• Ask for the same courtesy the witness afforded the government
• Explain to the witness the government’s agenda if you think doing so will resonate and bring the witness around

IV On the porch or in the house: getting the interview
• Always stay relaxed and adaptable
• Be authoritative without being intimidating
• The goal is to establish trust
• Be conversational, not stilted, and don’t be afraid to explain what you’re doing to get the witness on board
• Don’t put the witness under the interrogation lamp until you’ve established trust
• The hard questions can wait until you’ve laid the groundwork to ask them
• Don’t take out the notepad until it makes sense to do so
• If it is necessary or it will further establish trust, tell the witness how their cooperation with you will likely play out
• Ask the witness what their concerns are and be ready to address them
• While the witness is on the fence about talking, troll for information without really asking for it ("Has anyone from the government been in touch to tell you what’s going on?")
• If necessary, let the witness know that you are not there to talk them out of their position or to explain away your client’s behavior; you’re simply there to learn what the witness knows
• Make strategic disclosures to the witness and answer questions honestly if appropriate and you’re not breaching any privilege
• Avoid disclosures that can later be construed as contaminating or intimidating the witness
• Exploit the government’s tendency to leave witnesses and victims in the dark
about what’s going on in the case
• Only make promises to a witness you know you can keep
• Once you’ve established some trust, ask questions then get out of the way and let the witness talk
• Always leave the witness with your themes ringing in their ears

V. After the interview
• Difficult interviews don’t end when you leave the house: If you need a declaration or testimony, prepare the witness during the interview so it’s not a surprise three weeks later
• Make sure the door is left open for future contact and follow-up questions
• Follow through with any promise you’ve made (This will distinguish you from
government operatives in a positive way)