Donald Trump has been elected the 47th president of the United States. His election, due in no small part, to his promises to secure the border and his promise to enact the “largest deportation effort in American history,” has 50% of the electorate cheering and 50% of the electorate reeling. Unfortunately, it also has a significant portion of the American population, the undocumented, an estimated 11 million people (20-30 million of you believe Sen. Marco Rubio), scared and uncertain about their futures. While we can debate about the contributions that these men, women and children have made to American society; the effect of mass deportations to the American economy versus a pathway to citizenship; and the humanitarian concerns with separating families and deporting people who know no other country than this one, we cannot dispute that these folks live and work among us and are oftentimes needed as parties/witnesses in our cases. It can also not be disputed that the rhetoric around immigration and deportation has (or will have) a chilling effect on garnering the cooperation of these individuals to serve as parties or witnesses.

With that as the backdrop for the next four years, how do you—as a litigator—handle the questioning of an undocumented witness at a deposition, hearing or trial? Initially, if you are in the position of defending or producing the witness, one of the skills that is not taught in law school has to come into play—empathy.