The investigative interview is a very slippery slope. When
assigned to obtain an interview, an investigator must understand that his
challenge is to accomplish far more than learning the basic fundamentals of who,
what, where, when and how. Insurance companies, attorneys, and corporations
assign this effort rightly expect an alertness to critical information which
enhances, mitigates, exculpates or clarifies the perceived degree of exposure of
the matter involved. The interview, pivotal in many instances, is used as a
critical tool to establish the overall cost effectiveness of whether to continue
the litigation engagement or resolve the dispute by alternative methods.
The investigator must be judicious and regard the interview
as a process to be tailored according to the unique characteristics of a
particular matter. Balance the interview with direct, assertive questions,
revisiting those questions as necessary. Cloak the interview with engaging
conversation and friendly, gently placed, non offensive or argumentative,
adversarial interrogation. Be quick, well-organized, kind and courteous.
Regardless of how often one has handled a matter involving substantially similar
dynamics, the old rule of thumb applies-- the best questions are informed
questions. Research and prepare for an interview. Gather as much information as
you can about the particular incident and subject that you are about to
interview. A detailed briefing with counsel of the key elements of the case is
recommended.
Interview the subject in an environment in which he is
comfortable. Create a zone of comfort and an advocate. If that requires meeting
the interviewee in his car, office, evening walk, or on the side seat of a
backhoe, it is recommended that you do so. You will find a lunch or early dinner
meeting beneficial for a number of reasons. The location is neutral,
non-threatening, (especially if selected by the subject) and gives you an
opportunity to get acquainted. A genuine warming up of the relationship is key
to successfully obtaining information, but you must always be interviewing the
subject from the very moment you first contact him. Approach each interview with
the attitude that there is absolutely no reason for the subject not to want to
tell you what he knows about a given matter. He is telling you what he knows,
truthfully presumably, but with some anticipated inherent bias from what his
recall is of the event.
If the subject has agreed to meet with you over dinner or
lunch, he has, by implication, agreed to spend at least the better part of an
hour with you. Proper preparation, placing the subject at ease and not
immediately whipping out a notepad or tape recorder add to your leverage in
obtaining the complete, unfettered information you seek. Most people have a
tendency to be ill-at-ease and circumspect when copious notes are being made or
a recorder is being used. However, you will often be able to justify the use of
a recorder with a reluctant witness by suggesting that reliance on your memory
may not be in the best interest of the witness since you would not want to
inadvertently misquote him. Further explanation for not relying on hand-written
notes is the notes are contemporaneous, are self-edited, usually in industry
jargon and in a personally devised shorthand. Notes alone may not be sufficient
to impart the significance of perceived key points this particular witness may
deem of great importance to the overall factual scenario of the involved event.
A recording memorializes in perpetuity, not only the story being told, but the
complete dynamics with emphasis points of what has happened from the witness¹s
point of view. In addition, any argument at a later time as to whether the
question was leading and the answer responsive is more easily determined. Avoid
the use of legally significant terms such as statement, affidavit or declaration
until the interview has been concluded. Any attempt to elicit information with
an authoritative, menacing, hard-boiled or demanding position, as opposed to one
seeking the assistance of the witness, might prove disappointing.
On occasion, even after all of this rapport building, the
subject will still be reluctant to be recorded or allow you to take notes.
However, it is difficult to accept that someone will refuse to at least talk to
some extent about a particular event, so ask permission to audio record, in the
subject¹s presence, spontaneous notes while you are speaking with him. This
approach has succeeded, when other efforts have failed, even in situations when
left standing on the front porch stoop in front of a closed and locked screen
door of a subject¹s dwelling. This technique has been especially successful in
those situations where cooperation with anyone not a member of the community is
looked upon with suspicion by other members of the neighborhood who might become
aware of the interview or even may have been involved in the event. During the
process of dictating notes, inquire of the subject as to the accuracy of your
dictation of his personal knowledge of what he has just told you and have him
concur with that accuracy on the record. At the end of the spontaneously
recorded note making, have the subject reaffirm under the penalty of perjury
that what you have dictated reflects accurately what the subject has related to
you. This recorded note taking can be verbatim if you wish. Interviewees have
been known to jump into the recording while you continue to record to correct
your inaccurate depiction of what they may have just said to you.
In preparation for the interview make it a practice to write
out single word prompts of essential and significant points that need to be
covered. Your paperwork should be kept to a minimum to avoid the distraction of
fumbling through paper for supplemental or important information. It is
beneficial to explain the process in lay terms to the subject before the
interview. This develops a level of trust, reduces reluctance not to be of
assistance, demonstrates how benign, innocuous and painless the process truly
is. The sincerity of your intent and the demonstrated friendliness allay any
inherent fear of the witness. Your genuine curiosity about the witness, his
family, personal interests and well being, and not just the purpose of the
visit, assist in the development of a level of mutual comfort. When coordinated
appropriately, the interview process will be viewed as no big deal, while the
interviewee¹s personal knowledge about the event becomes the predominant focus.
If successful, you will have gained several additional
advantages, such as the witness's willingness to meet or talk with you a second
time for follow-up clarification or the service of process at a later date. In
most instances, a second, or sometimes third meeting, or teleconference will
become necessary. Rarely will you walk away from an interview having felt that
you have obtained the answers to all the questions that will ultimately need to
be answered by a particular witness.
The witness usually knows of other witnesses even when he
believes to the contrary. He may have a thread of information that he learned at
the event site that will assist you in locating other witnesses. This is an
opportune time to obtain these potentially key pieces of information as well as
supporting, identifying and subsequent location information of the interviewee.
Anchoring addresses and future contact sources of individuals not then residing
with the interviewee should be obtained in the event that the witness moves and
needs to be found at a later date.
When the witness seems to be reluctant about either
submitting to or continuing an interview, try finding matters of common interest
that may not necessarily be related to the matter that you are there to discuss.
On occasion asking of a hypothetical question that is factually inaccurate may
motivate the witness to tell you just how wrong you are, therein providing you
with the insight you wanted and needed. This approach has also been known to
bring the witness back to a modicum level of cooperation, giving him the
opportunity to demonstrate how much more he knows than you. It is well accepted
that eye witnesses¹ and percipient witnesses¹ recall of a particular event can
be unreliable. Therefore it is most important that you not only glean from the
witness what he knows, but equally, and in some cases more importantly, what he
does not know. As long as you can keep the subject talking, the more likely you
are of obtaining the necessary detailed information you seek.
If a witness expresses a concern about becoming involved in
what he believes is a nightmarish, out of control civil legal system, it might
be appropriate to show concern, and provide reassurance that with his
cooperation, protracted litigation is less likely, thus the lack of a need for
his continued involvement. You may wish to obliquely suggest that his
cooperation could help rein in what he perceives to be out of control, but lack
of cooperation may propel the system he complains about, further out of control,
unabated. Move on to the point of obtaining the information that you are there
to obtain. No matter how reluctant or apprehensive the witness, with polite
assertiveness always try again, explaining that without knowing what he knows
and having to return to your client with a report that the subject has elected
not to cooperate might result in a subpoena for his deposition, creating an
adversarial, less conducive situation for continuation of a much preferred less
formal cooperative dynamic. This is critical when the witness may have already
been interviewed by others.
If he has been interviewed previously, determine who did the
interview and on behalf of whom. If he has a transcript of the previous
interview ask if you may photocopy, or (at a minimum) review it. This might
create an additional opportunity to dictate spontaneous notes with sometimes
critical information being gleaned as well as the additional premium of
discerning the opposition¹s focus of interest. There are those instances that an
interview has not been recorded since the knowledge related by the witness
proved adverse to the interest of the client. Investigator¹s notes and reports
provided at the direction of counsel were not heretofore discoverable, only the
transcript of the recorded interview, if one was made. However, recent judicial
rulings have tentatively exposed the contemporaneous notes subject to discovery,
thereby eliminating the potential of dodging the discovery bullet of adverse
information which has been learned and is known only to the opposition. If an
interview with a witness was not recorded by someone that preceded you, there is
a reason it was not recorded. There is no better time to discover the reason
than when you first interview the witness.
The witness should be taken through his version two or three
times from different points of view with questions constructed differently to
ensure that he has understood the content of the original question. In this
fashion, you have a degree of comfort that you have obtained his complete
knowledgeable answer. This should be accomplished chronologically, starting over
from step one several times. When the important details are being recited, slow
the subject down, obtain as much detail as is possible. You will always receive
the most interesting details and in most instances the name of yet another
witness that needs to be interviewed when you directly ask a simple question
such as, How do you know that or what else?
Deceivers and those that tend to embellish, often provide
very complicated versions of even the most simple points in the false belief
that the more complicated the story is, the more credible. They often have the
mistaken belief there is less chance someone will bother to verify the content
of his version if it is complex and convoluted. Often that which is not
apparently important initially, becomes extremely important at a later date when
new factual material is discovered. Never be impatient. Even though you may have
another opportunity for a subsequent discussion, conduct each interview as if it
were the only interview you will ever have with this subject. Make it a practice
to determine exactly where the witness was standing and in what direction that
witness was facing when the involved event happened, the elapsed time from
awareness of the event to knowledge retention about the actual event.
Reconstruct mentally and probe the inconsistencies and the implausible, then and
there, and have the witness more fully explain his view of what he thinks he may
have seen. What was he wearing, where had he come from, who was he with and who
did he expect to visit or his reason for being in the event area at the time of
the event. What plans did he have or conversation was he having and with whom
moments before the event, what was the temperature, what were the sounds around
them other then the event happening, as well as any other potential available
distractions such as the use of a cell phone should be noted.
It is a very good policy to visit the event location prior to
the interview. Another approach is to meet with the witness at the event
location. If the latter is arranged, arrive early so you can assess the location
independent of input from the subject. Always determine and use reference points
at the location that are not likely to change or be removed. The advantage is
that minutiae and factually important material long forgotten or recessed into
the witness¹s memory will often come rushing back to the consciousness resulting
in your obtaining some surprising new previously undiscovered details. Listen
carefully and do not jump the answer to one question with yet another question.
The investigator must suspend his theory about the event at the beginning of the
interview, open his mind, listen intently, focus, concentrate and let the
witness do the talking. The most thorough, comprehensive and compelling
interviews are conducted with all your senses on the alert, the eyes,
(observation) ears ( active non-interruptive listening) and voice (modulation).
Concluding any interview under the penalty of perjury is
always a good approach to eliminate any possible allegations of impropriety in
the process of the interview by preempting such arguments with the affirmation
that you have neither offered or promised any compensation for his cooperation,
which is totally voluntary. Affirm that you neither forced or coerced in any
manner his cooperation. In those instances wherein you are required to reimburse
someone for his professional time or missed employment to meet and confer with
you, make it a part of the official record to avoid challenge at a later date
and always obtain third source verification for the amount involved. Lastly,
obtain acknowledgment that the subject has been or is aware that the interview
is being recorded. In conclusion, it is beneficial to obtain the answers to the
question of what else. You will often be surprised by the factual information
that you will learn from the answer to this rather catch-all question. Often, a
person simply is not aware of how much personal knowledge he has of a given
situation until you, the inquisitor, elicits and stimulates his rusty memory
tapes.
When properly done, the investigator remains firmly at the
top of the slope as does the case and the merits of the case. Accomplished
improperly the investigator and the case being handled as well as the merits of
it rapidly slips down the slippery slope to a much diminished position and
potential for appropriate resolution.
