The Investigative Interview in Anticipation of Litigation
By Robert H. Townsend
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 witness's 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 subject's 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 subject's 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 a 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 interviewee's 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 witnesses and percipient witnesses 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 opposition's 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. Investigator's 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 witness's 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.
Thank you to Mr. Eric Nalder of the Seattle Times for providing me with comprehensive interview results and how it is accomplished by the truly professional media in interviewing reluctant witnesses or the designated "spin controller" of a corporation as well as the elected governmental personality as contained in his article entitled "Loosening Lips" the "Art of the Interview".
Mr. Robert Townsend is a California based private investigator and owns R.H. Townsend And Associates. He is the current National Director Of The National Association of legal Investigators (NALI)
Copyright: 2003, Robert Townsend.
All rights reserved.