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Contacting and Compensating a Non-Party/Former Employee Fact Witness
Every good civil trial movie worth the price of admission seems to have as its climax the former employee who has long harbored some dark secret about the employer that is now revealed on the stand years later and that saves the day for the downtrodden plaintiff (and even more downtrodden attorney). Hollywood has repeated this formula successfully through the decades with, as examples, the former operating room nurse providing the true admitting record in The Verdict (1982); the former chemical company employee providing information about chemicals that were dumped into the town's water supply in A Civil Action (1998); and the former gas company employee testifying that he preserved records, against the gas company's direction, showing chromium contamination in the groundwater in Erin Brockovich (2000). While former employees can make for good drama on the movie screen, they can present legal and ethical issues that make for unwanted drama in real world litigation, unless counsel is careful.'
Contacting a Non-Party/Former Employee
In the movies, the former employee fortuitously arrives out of nowhere, eagerly agreeing to a clandestine meeting with counsel at which the “smoking-gun” evidence is provided. In the real world, counsel must work hard just to locate the knowledgeable former employee and then work even harder to convince the person to take a phone call or show up at a meeting, not knowing whether the person is the consummate “company man” or the embittered, terminated curmudgeon, or is a type somewhere in between.
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