People like to talk to people (as opposed to animals or inanimate objects). People also like to tell people secrets. Some like to confess and others do not. Sociopaths and psychopaths do not often confess.
An internal investigation is only as good as the information elicited during interviews. I do not mean to belittle the importance of collecting and reviewing documents. But documents provide the framework, the context and the outline of a series of events – the investigation story. Also, documents are invaluable tools for investigators when conducting interviews. They constrain the witness’ ability to fabricate or mislead. In many cases, they provide the boundaries for truth.
Putting the document issue aside, there are a number of important practical issues which investigators face when conducting witness interviews. These include: (1) pre-interview preparation; (2) the timing of the interview; (3) the location of the interview; (4) the attendees at the interview; and (5) the end of, or follow-up to, the interview.
Preparation. Assuming that the investigator has developed a work plan for an internal investigation, and identified the individuals to be interviewed in the initial stages of the investigation, the investigator has to devote time to prepare for each interview. Preparation includes reviewing relevant documents, researching the background of the witness, and understanding the role the witness played in the events under investigation. Questions should never be written out; instead subject areas should be outlined broadly, and documents to be used during the interview should be arranged and identified for use.
Interviews can never be orchestrated. Each has a life and an experience of its own. As an investigator learns more, gains more experience, and recognizes his or her own strengths and weaknesses, the investigator will gain more confidence and ability to conduct effective interviews. Quiet confidence always is more effective than loud bluster.
Timing. It always amazes me how many outside counsel confuse their role as an investigator with that of law enforcement proxies. What do I mean by that? Some companies like to arrange an initial investigation splash by arranging for simultaneous or rapid fire interviews of subjects who are being investigated in the mistaken belief that the element of surprise will cause individuals to confess and disclose. Instead, surprise can have the opposite effect – witnesses will shut down, find out what the investigators know and then later decide what they want to disclose. In most cases surprise interviews are a mistake. I do not mean to condemn the practice in every situation but the pros and cons need to be carefully considered.
Location. Interviews should never be conducted at a location where the witness is “comfortable.” Instead, it is important for the investigator to bring the witness to an area outside of his or her zone of comfort, away from his or her office and even outside the company building. In some cases, holding the interview in a large conference room with a large table can work to the advantage of an investigator, but this will depend on the circumstances. Whatever location is chose, it is important for the investigator to communicate to the witness that the investigator has the backing and support of the corporation. That has to be communicated by the physical surroundings and location chosen for the interview.
Participants. In my experience, the more people present at an interview, the less likely the witness will be candid and forthcoming. It is surprising how many interviews are conducted with a room or table full of people and the witness sitting alone, feeling defensive. Each person who attends has to be there for a justifiable reason, one that is specific to the overall success of the interview. The investigator and a notetaker have to be present. Every additional person has to be justified based on the specific circumstances and value-add.
End of Interview. Most important witnesses will be questioned on more than one occasion. Those who are at the center of the misconduct may only be interviewed once since they may require individual representation. Sometimes the end of the interview is just as important as the beginning. There are important housekeeping issues which have to be handled – the importance of confidentiality, a reminder on the privilege issue, and instructions on how to respond if the government contacts the witness.
There are also strategic issues – if the investigator believes that the witness has withheld information or been less than candid, the investigator should communicate that fact, not necessarily by explicitly stating his or her assessment but in the body language, the way in which the investigator interacts with the witness. In some cases, it is worth identifying issues of concern and reminding the witness that the investigation is continuing and the truth will be learned. It is a subtle point but the reminder that follow-up interviews are likely to occur is an important point to leave in the mind of the witness, so that the witness does not convince himself or herself that he or she has successfully snowed the investigator.