Taming Your Wild Witnesses

(Source: Conference Reporter Newsletter 05/23/2019)

At the Boston conference last week, a senior labor arbitrator offered advice about interviewing and preparing witnesses to testify.  These are just four points excerpted from the lecture.

Fallible memories.
This is how our brains work:  we hear a story and we repeat it to ourselves.  We might repeat it over & over.  That’s fine, except the story line may not be what actually happened.  When we find out what “really happened,” we have to reverse or over-write the story we initially committed to.  

I am not talking about people who deliberately create falsehoods.  I am talking about the majority of people who want to honestly testify.  And we all have a bias toward believing the first story we told ourselves.  

Now, consider how fallible our memories are.  This is also part of being human.  We simply don’t remember everything or even key things.  That doesn’t surprise anyone here.

In summary, your witness will have a bias toward the “first story.”  That first story gets corrected as more facts come out, or the first story seems less believable.  And then, when they’re ready to be interviewed or to testify, their memories are fallible.  Arbitrators know all of this.  This is why we look for evidence in the record which corroborates witness testimony.  In this way, the issues with memory and perception are not the sole basis for deciding what happened.

Eye witness testimony is always suspect.
Arbitrators are very familiar with the research.  Study after study has found that eye witness testimony is not all that reliable.  Again, this is why arbitrators look for more objective or demonstrative evidence to corroborate what the witness is testifying to.

How you ask the question matters.
A group of people were randomly chosen to view a crash.  During the interviews, the group was split into two:

One group was asked:  Did you see a broken taillight?

And the other group was asked:  Did you see the broken taillight?

And here the research showed more people answered “yes” to the second question.  This may not be surprising.  The questioner planted the idea that there was one.  However, persons in both groups said “yes” when in fact, there was no broken taillight.

This points out the vulnerability of eliciting testimony.  This is why many interviewers just ask the open-ended question:  What did you see?

Directly address the witness’s discomfort.
For many this is the only time in their life when they have to testify.  Second, they may have personal or cultural reasons for speaking softly, not looking you (or the arbitrator) in the eye, or any number of physical consequences to testifying.  Third, the subject matter of their testimony may cause them discomfort.  

I wish advocates would just address this up front.  Call the witness to the stand, the arbitrator swears (or affirms) them in, and your first question on direct should be:  Are you comfortable being here?  Or how do you feel about testifying?  

If the witness responds, “I am upset, because I am supposed to be home for my daughter who is sick,” or “I got this subpoena”, just ask more questions about this discomfort and clear the air.  You might find out that the witness is sweating because they feel the room is too warm.