Witness Interviews for Low-Dollar Cases: Outscoop a Settlement

Fact-determinative cases worth $20,000 or less may be the most difficult cases on the block. It's enough money to get your client mad, but not enough to make an arrogant opponent want to make any real progress. Nonetheless, in the land of the free, we need to respect everyone's access to the courts, no matter how big or small the claim (and sometimes we just get stuck with these cases).

Whether you're on the plaintiff's or the defendant's side, chances are things will move slow enough to give you an opportunity to gather the facts informally, then have a sit-down with the lawyer on the other side and see if something can be worked out before discovery influences the parties' temperment.

Here's my approach:

Step 1. Identify your capstone witnesses. There's usually one, maybe two, third parties that will make or break a case. Find that person early and see if he or she will talk. If this person is good for you, do a video interview. You avoid any lawyer-witness conflict issues and there's absolutely no question about what was said and when. Be sure to ask all the usual precatory stuff: "Are you under duress? Have you taken any medication that would prevent you from understanding my questions and answering them truthfully?" Then do the usual "general-to-specific" line of questioning. The key: capture the witness' story and the witness' demeanor.

Step 2: Identify your ancillary witnesses. These guys usually saw something minor or heard someone say some detail that just adds gravy to the train. I would also include in this category at least one person who knows your capstone witness and can testify to that person's credibility. Depending on their level of sophistication, you can go in-person and interview them with a digital recorder or just send them a list of questions (no more than 10 is a good rule of thumb) with blanks where they can fill in the answers.

Step 3: Go to Uncle Sam. Use your Public Information Acts and Government websites. Get the accident report, the deeds, the appraisal records, and the like. Nowadays, most of the open records requests I've sent come back via email and cost me a whopping $0.00.

Step 4: Try to Negotiate a Peace Treaty. Take what you've got to your opponent and make your case for settlement. Chances are, your opponent will understand that you've taken the case seriously and see something much more persuasive than your stinging letters: a vivid image of what the evidence will actually look like.