Notes vs Recording a Witness Interview. One’s Better.

In the legal field, there are few practices that cause stronger, and more unshakable, opinions than whether to take notes, or to digitally record, a witness interview.

In this piece, I’ll lay out the pros and cons of each process, and discuss in detail, why I’m partial to one process over the other. OK. Spoiler alert. I believe that taking notes during an interview is superior to recording an interview.

Why?

My position that taking notes is better is borne out of the approximately 12,000 witness interviews that I conducted during 30+ plus years of civil and criminal litigation case preparation investigations.

There are some times when recording an interview makes sense, as does the occasional instance of using a court reporter or videographer to record the interview. But for most interviews, notes are best.

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Benefits of Taking Notes

First. The vast majority of people that you interview, because they are unused to being recorded will spend a chunk of their time looking at the recording device and not at you. Thus, minimizing their eye contact with you. And that’s a rapport building killer.

Building rapport with your witness is as crucial a step to making your witness interviews more effective as there is. To build rapport you want your witness feeling as comfortable as possible.

I don’t know the psychology behind why witnesses become fixated on the device recording them. I seen enough of them just stare at the device to know it happens consistently. Perhaps it can feel truly intimidating to know when every single word, and every single ummm you utter is recorded. Perhaps for others, they simply don’t like how their voice sounds when recorded. But regardless of the reasons, they do stare at the recording device.

And trying to engage them becomes more difficult when they’re locking eyes on a device.

Second. Witnesses tend to answer in a more stilted fashion when they know their words are being recorded. And stilted interviews DO NOT make for effective interviews.

Ideally, a witness interview should be a narrative session with the witness doing most of the talking, rather than a Q & A session where the witness just answers your questions as briefly as possible.

The more a witness talks. The more information your get. So why add in a process that lessens what a witness says?

Third. By their very nature, a recorded interview is a verbatim account of the interview. And when you record an interview, you have to ask at the beginning and at the end of the interview, whether the witness is aware that you’re recording the interview, and whether they are consenting to being recorded, the interview has pretty much been reviewed and affirmed by the witness.

That makes it much easier--than say it does when summarizing an interview with my impressions of what the witness said and how it fits into our theory of the case--for the other side to get ahold of the recording through discovery.

If opposing counsel is unable to locate a witness to interview her, or to subpoena her for a deposition, a court is more likely to order you to produce a recorded interview transcript or copy of the recording where a witness has affirmed the interview than an interview summary.

Fourth. And I’ve seen this happen during more than a few interviews. Suddenly during the course of the interview, after giving what appears to be very helpful information to your theory of the case, the witness remembers and blurts out something damaging to your client. Really damaging.

And then you're toast if at any point during a hearing, trial, or deposition, you need to use the recording to refresh the witness's recollection.

Fifth. Mechanical devices fail. And it's not like you can redo the interview due to mechanical failure. You may only get one chance with a witness.

And when your equipment fails, you're stuck trying to remember what the witness said...perhaps a long time after the interview was conducted

OK. I'm pretty biased about this subject. I'll provide some tips on how to capture most everything a witness says in the witness's own words in a subsequent piece.

But, what can you do when you have no choice but to record an interview?

Recorded Interviews

The one real benefit to me when it comes to recording is that you have something in the witnesses own voice should they later change their version of events.

This can and does happen. But, overall it’s fairly rare.

In the 30 years I conducted witness interviews, I literally only had three witnesses later deny what they told me during an interview.

One witness, in an employment discrimination case, feared if he was truthful he’d lose his job. And losing a paycheck can be a strong motivator to lie. His bosses were none to happy that I had interviewed him (he was just an employee, could not bind the company, and was not represented by counsel).

In that case, I testified as to what he actually told me during the interview, and the interview summary I prepared for my notes was used to refresh my recollection. The judge asked me a few questions during my testimony, and declared that he believed the witness changed his testimony out of fear of losing his job. And that was that.

The other two witnesses were part of the same case. After denying on the stand that they had told me what they told me, both were handed the interview summary I had prepared from their interview, to refresh their recollection while on the stand. Both of them then admitted on the stand that the interview summary was correct, and they both had told me during the interview, what they later denied saying.

My Approach When I Needed to Record an Interview

My approach to recording an interview (only when my attorney clients wanted it interviewed) was to initially conduct the interview while taking notes, and then after learning what the witness had to say, I’d ask the witness if she was ok with me recording her.

I’d let her know the specifics of what I wanted to go over with her a second time while recording, and focused on that part during the interview.

I wouldn’t conduct the entire interview over again (See #4 above).

I still prepared an interview summary of the full interview, and in the interview summary, I’d mention that a brief recording was completed at the end of the interview.

There you have my take on this highly controversial subject.

Which approach do you like to do for witness interviews? Comment below.

And, if you want to learn how to improve the effectiveness of your witness interviews to maximize your case results, download my free guide, 6 Steps to Conducting More Effective Witness Interviews to Maximize Your Case Results by clicking on the image below.

or click here to watch the free pre-recorded workshop where I go more in depth on the interview process. See the sidebar to get started.