Routine Internal Investigations and Interviews (Part III of IV)
Interviews are the critical part of every internal investigation. Before conducting any interviews, it is important for the investigator to know as much as possible about the events under investigation. Such knowledge can come from documents, emails, financial audits, forensic studies and any other information.
Practitioners know that interviews should be conducted in reverse order – meaning from least important to most important. The more information gathered from interviews before conducting the key interviews, the better for the internal investigation.
Common Interview Mistakes
As I have written before, there is a real skill to conducting interviews. Many practitioners know how to “prepare” for interview but few really know how to conduct an effective interview. Believe it or not, the most important requirement is for the interviewer to know themselves, their capabilities to interact and empathize with others, the impact they have on people, and their ability to “read” people and understand their motivations.
One of the most common mistakes committed by investigators is to conduct interviews from a “script” of questions. Investigators who rely on written scripts frequently miss the most important part of the interview – their ability to respond to verbal and non-verbal cues for follow up as needed. As someone long ago told me, you need to be able “play off” the witness. Many attorneys tend to avoid “playing off” and instead rely on “preparation” as a crutch to reduce anxiety. It is a common and critical mistake.
Inexperienced or unconfident attorneys will sometimes try intimidation and bullying to convince a person to disclose information. That is another misguided tactic which rarely, if ever, succeeds, and only exposes the attorney’s lack of confidence and inability to conduct an interview.
Keys to Success
When the issue is boiled down, a successful interview depends on interpersonal skills, knowledge of the facts, patience, persistence and the ability to elicit important information from subjects. Rapport is the lifeblood of interviews.
At the beginning of the interview, the investigator should try and establish rapport through basic “human” interactions. There is no reason to try and intimidate the subject who will be nervous no matter if they are a witness or the focus of the investigation. An investigator has to try and elicit as much information as possible by listening carefully and being firm when the witness is non-responsive or evasive.
In addition, a basic introduction and exit statement should be given informing the witness of the purpose of the interview, the witness’ rights, the preservation of attorney-client privilege and the confidentiality of the interview. Every interview should be conducted with at least two persons, one of whom records the interview by taking notes to memorialize the events.
Purpose of the Interview
The focus of every interview should be on information the witness personally knows. It makes no sense to ask a witness to speculate as to how or why an event occurred. As a general rule, an investigator should interview any person who may have information that is relevant to the allegation. Questions should be open-ended and should focus only on the details that particular person should know. Every interview should be conducted in a professional manner. The investigator should not comment on the investigation in the presence of any witness.
Written or recorded statements by witnesses can be effective depending on the candor of the witness. If the witness is truthful and there is concern the witness may fail to cooperate later in the investigation, a statement can be written or recorded. I rarely record statements or have a witness write a statement because of concerns that I have not elicited all of the information from the witness. No witness ever tells the truth or can recall everything during an initial interview.
It is essential that the investigator provide company personnel with an Upjohn warning at the beginning of each interview to ensure that it is clear that the investigator, if an attorney, represents only the company and not the individual employee; the purpose of the interview to allow the investigator to provide legal advice to the company; and the company controls the information and the attorney-client privilege and may disclose information it deems necessary to other parties, including the government.
If the employee asks the investigator if he or she needs an attorney, the investigator should not make any statement which suggests directly or indirectly that the employee does not need separate counsel. In addition, the investigator should tell the employee that he or she cannot advise the employee as to whether the employee needs an attorney.