Investigative Interview in Anticipation of Litigation

The investigative interview is a precarious cliff. When tasked with obtaining an interview, an investigator must recognize that his task entails far more than simply learning the fundamentals of who, what, where, when, and how. Insurance companies, attorneys, and corporations who assign this effort correctly expect an alertness to critical information that improves, mitigates, exculpates, or clarifies the perceived degree of exposure of the matter at hand. In many cases, the interview is used as a critical tool to determine the overall cost effectiveness of continuing the litigation engagement or resolving the dispute through alternative methods.

The investigator must exercise caution and view the interview as a process that must be tailored to the specific characteristics of a given case. Balance the interview with direct, assertive questions, returning to them as needed. Cloak the interview in engaging conversation and gentle, non-offensive, argumentative, adversarial interrogation. Be prompt, organized, kind, and courteous. Regardless of how many times one has dealt with a situation involving significantly similar dynamics, the old adage holds true: the best questions are informed questions. Prepare for an interview by conducting research. Gather as much information as possible about the incident and subject you are about to interview. It is recommended that the key elements of the case be thoroughly briefed with counsel.

Interview the subject in a setting where he feels at ease. Create a safe haven and an advocate. It is recommended that you meet the interviewee in his car, office, evening walk, or on the side seat of a backhoe. A lunch or early dinner meeting will be beneficial for a variety of reasons. The setting is neutral, non-threatening (especially if chosen by the subject), and allows you to get to know each other. A genuine warming up of the relationship is essential for successful information gathering, but you must always interview the subject from the moment you first contact him. Approach each interview with the mindset that there is no reason for the subject not to want to tell you everything he knows about a given topic. He’s telling you what he knows, presumably truthfully, but with some expected bias based on his memory of the event.

If the subject agrees to meet with you over dinner or lunch, he has implicitly agreed to spend at least an hour with you. Proper preparation, putting the subject at ease, and not whipping out a notepad or tape recorder right away increase your leverage in obtaining the complete, unfettered information you seek. When copious notes are being taken or a recorder is being used, most people feel uneasy and cautious. However, you can often justify using a recorder with a reluctant witness by implying that relying on your memory may not be in the best interests of the witness because you don’t want to inadvertently misquote him. Another reason for not relying on handwritten notes is that they are contemporaneous, self-edited, usually in industry jargon, and in a shorthand devised by the author. Notes alone may not be sufficient to convey the significance of perceived key points that this particular witness may regard as critical to the overall factual scenario of the involved event. A recording immortalizes not only the story being told, but also the entire dynamics with emphasis points of what happened from the witness’s point of view. Furthermore, any later debate over whether the question was leading and the answer responsive is more easily resolved. Until the interview is finished, refrain from using legally significant terms such as statement, affidavit, or declaration. Any attempt to elicit information with an authoritative, menacing, hard-boiled, or demanding posture, as opposed to one seeking the witness’s assistance, may be unsatisfactory.

Even after all of this rapport-building, the subject may be reluctant to be recorded or allow you to take notes on occasion. However, it is difficult to accept that someone will refuse to talk about a specific event to some extent, so request permission to audio record spontaneous notes while speaking with the subject. This method has worked when other methods have failed, even when left standing on the front porch stoop in front of a subject’s closed and locked screen door. This technique has been particularly effective in situations where cooperation with anyone who is not a member of the community is viewed with suspicion by other members of the community who may have become aware of the interview or may have been involved in the event. During the process of dictating notes, ask the subject about the accuracy of your dictation of his personal knowledge of what he has just told you, and have him agree on the record. Have the subject reaffirm under penalty of perjury that what you have dictated accurately reflects what the subject has related to you at the end of the spontaneously recorded note taking. If you prefer, you can record your notes verbatim. Interviewees have been known to jump into the recording while you are still recording in order to correct your inaccurate portrayal of what they may have just said to you.

Make it a habit to write out single word prompts of essential and significant points that must be covered in advance of the interview. To avoid the distraction of fumbling through paper for supplemental or important information, keep your paperwork to a minimum. Before the interview, it’s a good idea to explain the process to the subject in layman’s terms. This fosters trust, reduces reluctance to refuse assistance, and demonstrates how benign, innocuous, and painless the process truly is. The sincerity of your intentions, as well as your demonstrated friendliness, allay the witness’s inherent fear. Your genuine interest in the witness, his family, personal interests, and well-being, rather than just the purpose of the visit, aids in the development of mutual comfort. When properly coordinated, the interview process will be viewed as unimportant, with the interviewee’s personal knowledge of the event taking center stage.

If you are successful, you will have gained several additional benefits, such as the witness’s willingness to meet or talk with you again for follow-up clarification or process service at a later date. In most cases, a second, or even third, meeting or teleconference will be required. Rarely will you leave an interview feeling as if you have obtained answers to all of the questions that will eventually need to be answered by a particular witness.

Even if he believes otherwise, the witness is usually aware of other witnesses. He may have a thread of information from the event site that will help you locate other witnesses. This is a good time to get these potentially important pieces of information, as well as the interviewee’s supporting, identifying, and subsequent location information. Anchoring addresses and future contact sources of individuals who are not currently living with the interviewee should be obtained in case the witness moves and needs to be found at a later date.

When a witness appears hesitant to submit to or continue an interview, try to find topics of common interest that are not necessarily related to the topic you are there to discuss. On occasion, asking a hypothetical question that is factually incorrect may compel the witness to tell you how wrong you are, providing you with the insight you desired and required. This method has also been known to bring the witness back to a reasonable level of cooperation, allowing him to demonstrate how much more he knows than you. It is widely acknowledged that eyewitness1 and percipient witness1 recall of a specific event can be unreliable. As a result, it is critical that you learn not only what the witness knows, but also, and perhaps more importantly, what he does not know. The longer you can keep the subject talking, the more likely it is that you will obtain the necessary detailed information.

If a witness expresses concern about becoming involved in what he perceives to be a nightmare, out-of-control civil legal system, it may be appropriate to express concern and reassure him that with his cooperation, protracted litigation is less likely, implying that his continued involvement is unnecessary. You may want to imply obliquely that his cooperation could help rein in what he perceives to be out of control, but his lack of cooperation may continue to propel the system he complains about further out of control. Proceed to the point of obtaining the information for which you have come. No matter how hesitant or apprehensive the witness is, always try again with polite assertiveness, explaining that not knowing what he knows and having to return to your client with a report that the subject has elected not to cooperate may result in a subpoena for his deposition, creating an adversarial, less conducive situation for the continuation of a much preferred less formal cooperative dynamic. This is especially important when the witness has already been interviewed by others.

Determine who conducted the interview and on whose behalf it was conducted if he has previously been interviewed. If he has a transcript of a previous interview, ask if you can photocopy it or (at the very least) review it. This may provide an additional opportunity to dictate spontaneous notes, with sometimes critical information gleaned, as well as the added bonus of determining the opposition’s focus of interest. There have been cases where an interview was not recorded because the witness’s knowledge was detrimental to the client’s interests. Previously, only the transcript of the recorded interview, if one was made, was discoverable, not the investigator1s notes and reports provided at the direction of counsel. Recent judicial rulings, however, have tentatively exposed the contemporaneous notes subject to discovery, thereby eliminating the possibility of avoiding the discovery bullet of adverse information learned and known only to the opposition. There is a reason why an interview with a witness was not recorded by someone who came before you. There is no better time to find out why than when you interview the witness for the first time.

To ensure that he understands the content of the original question, the witness should be taken through his version two or three times from different points of view with questions constructed differently. In this way, you can be confident that you have received his complete and knowledgeable response. This should be done in a chronological order, beginning with step one and working your way down. Slow down the subject and get as much detail as possible when the important details are being recited. When you directly ask a simple question such as, How do you know that or what else?, you will always receive the most interesting details and, in most cases, the name of yet another witness who needs to be interviewed.

Deceivers and embellishers frequently provide very complicated versions of even the most basic points in the mistaken belief that the more complicated the story, the more credible it is. They frequently mistakenly believe that if his version is complex and convoluted, no one will bother to verify its content. When new factual material is discovered, what appears to be unimportant at first becomes extremely important at a later date. Never be irritable. Even if you have another opportunity for a follow-up discussion, treat each interview as if it is the only one you will ever have with this subject. Make it a habit to determine exactly where the witness was standing and facing when the involved event occurred, as well as the elapsed time from awareness of the event to knowledge retention about the actual event. Reconstruct mentally and probe the inconsistencies and implausible immediately, and have the witness more fully explain his view of what he believes he may have seen. What he was wearing, where he had come from, who he was with and who he expected to see, or his reason for being in the event area at the time of the event What plans did he have or conversations did he have and with whom moments before the event, what was the temperature, what were the sounds around them other than the event happening, and any other potential available distractions such as cell phone use should be noted.

It is a good idea to go to the event location before the interview. Another option is to meet with the witness at the site of the event. If the latter is planned, arrive early so you can assess the location without relying on the subject’s input. Always choose and use reference points that are unlikely to change or be removed from the location. The advantage is that minutiae and factually important material long forgotten or recessed into the witness’s memory will frequently come rushing back to consciousness, resulting in you obtaining some surprising new previously unknown details. Listen carefully and do not follow up an answer to one question with another. At the start of the interview, the investigator must suspend his theory about the event, 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 of your senses alert, including your eyes, ears (active non-interruptive listening), and voice (modulation).

Concluding any interview under the penalty of perjury is always a good way to eliminate any potential allegations of impropriety during the interview process by preempting such arguments with the affirmation that you have not offered or promised any compensation for his cooperation, which is entirely voluntary. Assure him that you did not coerce or force his cooperation in any way. If you are required to reimburse someone for professional time or missed work in order to meet and confer with you, make it a part of the official record to avoid a later challenge, and always obtain third-party verification for the amount involved. Finally, obtain confirmation that the subject has been or is aware that the interview is being taped. Finally, it is advantageous to obtain answers to the question of what else. The factual information you will learn from the answer to this rather broad question will often surprise you. Often, a person is unaware of how much personal knowledge he possesses about a given situation until you, the inquisitor, elicits and stimulates his rusty memory tapes.

When done correctly, the investigator, as well as the case and its merits, remain firmly at the top of the slope. If done incorrectly, the investigator and the case being handled, as well as its merits, quickly slide down the slippery slope to a much diminished position and potential for appropriate resolution.

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