By Attorney James Ballidis
Senior Litigation Attorney, Allen, Flatt, Ballidis & Leslie

One of the most troubling areas of law is uncovering the bias of a witness who observed an auto accident. In California, there are evidence rules controlling how an attorney in an Orange County courtroom may expose bias. However, bias of a witness should be uncovered early to allow the preparation of the case and also maximize settlement before "going to court".

Bias exposure starts with the witness interview. If you have not reviewed Interviewing an Auto Accident Witness, you should do so now to understand the goals of interviewing and how to communicate effectively with a witness.

Once the witness has been contacted, exposing any unfavorable and favorable bias is tricky and requires artful discussion of the facts, while actively listening to the witness. Once the bias is exposed, to the largest extent possible a qualified attorney will want to encourage the witness to acknowledge the bias, and where it influences the rendition of facts or opinions, move away from those opinions that are unfriendly to our view of the case. Let's discuss each.

Expose all auto accident witness bias

Notice that in an auto accident case, our attorneys want to expose all bias, not just unfavorable bias. Why? If the other side learns of that bias favorable to our version of the auto accident, the opposing attorney can exploit that bias to demonstrate the collision witness is not credible, and defeat the favorable witness's usefulness. Therefore, exposing all bias is the preferred investigative technique. To do so the attorney must openly discuss the facts and opinions of the witness as set out below.

Actively discuss facts and listen to the witness

An amateur investigator and even beginning lawyer will frequently contact a witness knowing what he wants the witness to say. Then during discussion, the investigator encourages the witness to agree with the questions asked by the investigator. "You thought the other party ran the red light, didn't you?".  "Did you see the other party speeding?" The professional auto accident attorney will ask open questions of a witness and encourage as much comfortable discussion as he or she can. The attorney should desire to learn as much as he or she can about not only the opinions, but facts and thought process of the witness.

During the discussion of auto accident facts informally, we do not recommend recorded statements.  See our link on the Importance of Recorded Statements.  A witness will, if comfortable with the interview, divulge opinions about the collision, their rendition of facts, and opinions on the parties. Where those opinions do not logically follow the facts, a bias is likely to reside.

As an example, assume a witness tells our attorney that our motorcycle client was traveling well past the speed limit when approaching the intersection, but admits that she only saw our client "for an instant." It is likely that a bias exists toward motorcycle speeds. A typical witness will be neutral on factual conclusions of speed without a good opportunity to see the vehicle or a valid point of reference. The fact that this witness has concluded excess speed uncovered a likely issue.

Other examples are the affirmation of liability of a party to the accident, when the witness saw little of the auto accident, or concluding that one party was wrong and another in the right based on their opinion of the party. An obvious example might be a racial slur, or comment about the demeanor of the party at the scene like "that guy was a jerk."

Sometimes it takes a lot of effort to identify a bias, because a witness will willfully want an outcome to a case and hide the bias, knowing his testimony will be discounted. Therefore, a patient, open discussion of as much detail about the auto accident is in order.

Encourage the witness to acknowledge the bias, and not let it ruin your case.

Just because an auto accident witness has a bias does not mean that the witness is useless to the lawyer or case. Nothing is more powerful than a witness disclosing that he or she really does not like a person, motorcycle riders, or even the facts as observed, but still feels the version they are giving, helpful or not, is an accurate version.

Once uncovered by the attorney, instead of directly confronting a witness with the question of bias, let the witness discover the bias for herself. In this way the witness actually respects the lawyer's discussion and will many times alter her version to the client's favor in "fairness." As in our motorcycle witness example, the lawyer may further explore the witness' experience with motorcycles, and motorcycle speeds. Has the witness ever driven or ridden on a motorcycle? Is the witness familiar with motorcycles, or had any accidents with motorcycles?

Careful listening will give a clue as to how firm the witness is on her opinion. Suppose the witness is not firm at all on the opinion of speed. Asking the witness to consider the speed testimony in light of her lack of experience may be a good technique. A question like, "I see you mentioned the excessive speed of the motorcycle as something you concluded. What gave you that impression if you only saw it "a split second". Witnesses generally like to be accurate and this witness may retract that opinion: "I really didn't get enough of a chance to see the motorcycle's speed". Your case is saved.

A more purposeful witness with a bias may be unwilling to change an opinion in the face of an obviously glaring lack of factual support. In such a case, it may be best to simply document in a written statement that the auto accident witness formulated the speed impressions, but confirm that the witness only saw the accident for a split second. In such a case, others will see the bias and discount the speed issue where appropriate.

For the auto accident witness that is intentionally biased to an outcome, no matter how the facts and other witnesses testify, it is important to gain all the relevant facts, not opinions, that this witness has and document carefully. This witness will have to be exposed later for what he is, intentionally manipulating facts to an outcome he desires. This type of bias can be seen in family member versions or persons desiring personal gain.

The key to a successful case is investigation. When the investigation is done effectively, your case will be better for it.

James Ballidis is a prominent Orange County attorney handling auto accident and personal injury cases for the last 20 years. He is recognized as a preeminent lawyer rated AV with Martindale-Hubble, the highest rating awarded such attorneys. He frequently writes articles for print and legal journals on the law and handling of auto accident cases. He is a member of Allen, Flatt, Ballidis and Leslie and welcomes press inquiries. He can be contacted by clients or others at 1-888-752-7474 or Online.