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Talking to potential witnesses before depositions or trial

Sacramento, CA |

I am being sued, I have to determine if I can win or not and if I should settle.

I have found some of the plaintiffs employees phone numbers and I want to get some information from them but I am wondering if that will cause problems if I choose to move forward with the case.

What should I watch out for?
I need to gain some preliminary information, this seems to be the cheapest way.
But is it the smartest way?

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Attorney answers 5

Best Answer

If you must interview, I would use an investigator to do the interviews and make sure the investigator takes careful interview notes in case the employee flip-flops at trial.

David Mallen

David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.


Whether this is the smartest way isn't a question that could be easily answered on this public forum without substantially more information regarding the nature of the lawsuit against you.

Generally speaking, there is no prohibition for a party in a lawsuit to interview potential witnesses to obtain information (prior to a formal deposition or a trial). The caveat, however, is that the witness cannot be coached into testifying untruthfully or to testify in a certain way. Such witness could be impeached at the time of trial. Also, keep in mind that any discussions which you had with the witness would be discoverable.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


It's hard to say whether this is smart or not, but here are some of the risks you run.

1. There is nothing to say the plaintiff's employees have to talk to you.
2. Some employees may report your contact back to their employer.
3. Anything you say can indeed be used in the litigation against you.
4. Nothing you say in those conversations can help you.

The risks may be lower if you contact former employers of the plaintiff.


I agree with my colleagues. I'd stay away from current employees. All they have to do is report you and you're shut down totally. Since you've already been sued , and I assume you are not represented by counsel, you could end up hurting your settlement position if you the wrong things. I'd recommend former employees as a source of information also. Good Luck.


My colleagues have given sagely advice, considering the posting is short on details. Understandably, you need to be careful posting too much info on a public forum, such as Avvo, lest your adversaries read it and know your strategies. Perhaps you can consult with an attorney in private and figure this out. Or perhaps have a private investigator, who is good with interviews, help you determine what witnesses might be helpful, but again, expect one witness might blow the whistle and advise the employer what you're up to.

Robert Stempler (please see DISCLAIMER below)
Twitter: @RStempler

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