Asking the Right Question the Right Way - Personal Injury Case


In a personal injury case, our firm located and conducted an interview with a key witness of an accident. The way the interview was conducted made all the difference in helping our client obtain a favorable verdict.

The Story:

We conducted an investigation into a vehicular accident involving an automobile and a truck. The truck was operated by our defendant client and the auto was driven by a middle-aged senior banking official. Unfortunately, the driver of the auto was paralyzed from the neck down. The damages based on potential earnings of the plaintiff in this civil case were headed for the stratosphere,

The accident had taken place at a four-way intersection with traffic control lights. The investigation centered around who had the green versus who had the red light. The driver of our defendant client's truck contended that he had the green light and the driver of the auto, the paralyzed plaintiff who also suffered minimal brain damage as a result of the accident, did not remember whether he entered the intersection on the green or red light.

When the accident occurred, after hearing the accident, a Hispanic food service worker had run out of the restaurant where he was working. He took a fire extinguisher to the accident scene and helped extinguish a potentially lethal fire. Accident reconstruction experts for both sides began working out different scenarios, which were based on when this man with the fire extinguisher had exited the restaurant. Two other witnesses had given their opinion of how long it took the worker to exit the restaurant and whether the light was red or green when he exited the restaurant. The key fact thus became how long it had taken this man to exit the restaurant from the time he heard the accident.

The experts for both sides made compelling arguments based upon differing time estimates, so it became critical to the defense to locate the witness, who had by the time we received the case, moved to an unknown location in Northern California. We needed to find him and ask him how long he spent inside the restaurant before exiting the building and being seen by the other witnesses to the case. The critical time element became fifteen seconds: if it had taken him longer than fifteen seconds to exit the restaurant, our expert's scenario was more credible. If it took him less than fifteen seconds, the plaintiff's reconstruction was the more probable.

This witness was an undocumented worker, so locating him proved to be challenging. We eventually found him working on a farm in the Central Valley and made arrangements to drive to his location and interview him.

In the protocols of investigative interviewing as practiced by law enforcement in criminal investigations, it is a well-established practice of never providing the witness with information that will suggest the answer that the interviewer wants, but rather to ask the question in a content neutral manner.

Our investigator, Nic Smith, asked the witness if he remembered how long it took from the time he heard the crash until he exited the restaurant carrying the fire extinguisher. He said that he had no idea. Given that, Nic again asked the question in a manner designed to allow him to provide the information he remembered, and he still was unable to come up with an answer. Nic then queried, "Did it take you as long as thirty seconds?" This then became his "anchor" with regards to time. He replied that he thought he was out the door in "about fifteen to twenty seconds", an answer that cinched our expert's opinion.

The result was a defense verdict in a case that could have easily gone the other way depending on who asked the witness the key question, "How long did it take to get out the door?"

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