Witness Fatigue: It’s Real

I remind myself that when I contact potential witnesses, that they are doing me the favor. Investigators and attorneys need to be aware that some witnesses should be treated with kid gloves.

Witnesses did not ask to be dragged into depositions, multiple interviews by investigators from both sides, be made “limited purpose public figures” or have their names and phone numbers released to the media. They had the misfortune of seeing something and often came forward on the scene to give information to police or to someone else in authority.

As investigators, we get paid to be the intermediary between the hard-charging attorney and the sometimes reluctant witness. The attorney has the vision for what it takes to win the acquittal, verdict, settlement, etc.

I suppose that one of the reasons why I like doing work for plaintiffs’ attorneys is that I am often the first investigator post-incident to interview an onlooker. The bigger the case, the more important it is to shoot-straight with the person and let them know what might lie in store for them. You know what the witness gets for his or her time or aggravation? I think it’s about $45 in a civil case and of course nothing in a criminal matter.

I had one case in Berkeley several years ago where attorney Richard Shikman and I pretty much had to persuade an entire neighborhood to give sworn testimony against another neighbor, whose son had shot and killed a teenager across the street from them. I could not blame them at all if they had told us to get lost.

I have an ongoing case where a bartender is a crucial witness in a civil injury case. We know the defense investigators and attorneys are going to do their best to tear apart her credibility.

I recently transported a homeless man in San Francisco to a deposition. He had seen a horrific incident in the street. His take? The standard witness fee, some clean clothes and a meal at McDonald’s. He underwent three hours of questioning in a deposition.

One friend was a witness to the incident on BART where a police officer took a crazed man off a train. The fracas made news because amateur video showed glass breaking when the man’s hand struck thin glass as the officer put the man against a window. After he came forward, BART accidentally released his name and phone number to the media.

As good investigators, we gain trust by being honest with witnesses. I tell every witness that their participation with me is voluntary. I never suggest that they not participate with insurance defense investigators or the prosecution team. Sadly, not all police investigators and district attorneys live by the same code.

So to all my willing witnesses I say thank you. To the ones who don’t want to help? I may not like it but I understand.

We Miss James Perley: Defined by So Much More Than The Law

It was only yesterday that I learned of the unexpected death of friend and client James Perley, East Bay criminal defense and civil attorney who died in his sleep at home. He was only 46 and leaves behind four young children and his wife.

I, like most in his orbit, had a heck of a good time around him. I had talked to him on the phone the afternoon before he died. We talked a little business, a case in which an SUV ran over his client in a Newark, California parking lot, and argued and jibed each other about rugby. He was planning his strategy on the case. “I just want to make millions and get out of this business,” he said, pausing for a beat, “Just kidding, man, just kdding!”

What was great about James was his passion to hurtle into everything he did: family life, starting a rugby club for his kids, drumming in his band Hanzoff, hunting, diving, following Nascar, battling for his clients, going to an A’s game or just hanging out. He was a fun machine. My wife and I had gone to Pleasanton last month to watch his band. It was all very James Perley at the gig in that kids ran amok, grandmothers in tight pants gyrated on the dance floor, an overflow crowd just had a great time and it only made sense that he presided over it all –keeping the beat on AC/DC and Van Halen.

Most of my relationships with clients are strictly professional, phone exchanges, emails back and forth, “you got that yet?”, “this witness is awesome” or “did you get my invoice?” James liked to come with me on some of the work that I did. He had a great touch with witnesses, a friendly but persistant man-mass with an intense ruddy complexion and close-cropped blond hair.

We liked to do the work but have fun on the way. He lost one case, the only one I knew him to lose, that I refer to as the “dogshit case. ” His client, a landscaper, hurt his knee when he fell off a ladder in a customer’s yard. The client had told the customer repeatedly to clean up the dog crap in the yard, but the customer never did and the injury occurred just after the ladder slid in “it.” James scoffed at the homeowner’s insurance company’s weak offer and felt he had no choice but to go to trial. We yukked it up about having the dog testify or maybe having a laboratory test the “co-efficient of friction” on the turd in question. (James blamed the loss on his client getting diarhhea of the mouth on the stand.)

We loved to rib each other. I especially liked to get on James that he was the only pro-gun, personal injury attorney who voted Republican. I told James that the GOP would like to put plaintiffs attorneys out of business. He would say that the Demos wanted to take his guns away from him.

James started the Danville Oaks Rugby Club about five years ago. James never played the game but grooved on the primal violence of the sport. I used to go to his house late-night to catch games on cable with him, stereo blaring and his kids running in and out of the room. ( Even his dog, the enormous chocolate lab Cerberus, pulsed with life lust)

James frequently left his office in Fremont early to return to Danville to hang out with his wife and kids. Fellow coach Jon Straka and I, joined by James, would get big games of touch rugby going with 12 or so kids at Hap McGee park or one of the other schools. After practice, James would have the “team” over to The Crown where it was ice cream for the kids and pints for “team management.” James even sponsored B.A. Baracus men’s rugby club, which has his name on the jerseys. James was all about inclusion.

I could go on and on. Oh, my wife and I had a housewarming party and James and his family brought me a gag gift. He knew how bad I wanted a dog. They bought one of those “half-dogs” with batteries in it so you can see the rib cage rising and falling. I thought for a second it was real. It cracked James up.

In lieu of flowers, the family requests donations to: James C. Perley Children Memorial Fund, Bank of the West, 307 Diablo Road, Danville, CA 94526.