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Litigation: Lights, action, interview

Setting the stage for optimal information gathering in internal investigations

Gathering information, particularly from witnesses, can be an elaborate production. Often the casting and the setting dictate the success of the endeavor; other times mood and tempo drive the outcome. As the investigator, it is incumbent upon you to carefully consider the known personal characteristics and temperament of the witness and to set the stage to achieve optimal results.

Face-to-face versus phone interviews 

Costs are always a consideration in internal investigations. Consequently, there is a bias in favor of performing out-of-town interviews over the phone or via video conference. If the purpose of the interview is to obtain general background information or discuss uncontroverted facts, phone interviews are appropriate, if not preferable. If, however, the witness has knowledge of key disputed facts or if the credibility of the witness will have an impact on your investigative findings, a face-to-face interview is a wise investment. (While video-conference interviews will also afford you the opportunity to “see” your witness’s reactions, those discussions are often more stilted than telephone discussions.)

If you are sitting across from a witness, you can observe whether she is avoiding eye contact, searching for the answer on the ceiling, compulsively tapping the table, sweating bullets or staring imploringly at her lawyer throughout your questioning. You can see what the government will see when the outside investigatory agency subsequently interviews her. And you can see what a jury will see when your witness takes the stand. 

Location, location, location

The “setting” of the interview also is an important consideration. Conducting interviews in close physical proximity to the witness’s workspace is less than ideal. Discreet locations preserve confidentiality and foster disclosure. In a high-profile investigation we conducted several years ago, we established an off-site “bat cave” location to conduct key interviews. This enabled us not only to avoid media scrutiny of who was being interviewed and when, but also to curtail any attempts by others involved in the investigation to influence the outcome of our work.

Mood, tempo and atmospherics

Like any good theatrical production, interviews should have periods of exposition, action and dramatic climax. All interviews should involve some open-ended questions to allow the witness to tell her story. Sometimes the interviewer should foster rapport with the witness and draw out information in a nonconfrontational manner. At other times, the interviewer should fire leading questions or cajole the witness with awkward silences or stares of incredulity.

Learn your themes, not your lines 

Last, but certainly not least, prepare. Identify all of the topics you want to cover, devise segues, determine if and when to use documents, but whatever you do, do not learn your lines. Generating and adhering to lists of specific questions is a recipe for disaster. Instead, learn your themes. Know the themes you intend to explore, as well as the manner in which you plan to address them, and listen carefully to each answer the witness gives. That way, when your interview veers sharply off your well-designed course (which it certainly will), you will have no difficulty navigating back to your planned themes after you have fully explored the unanticipated subjects raised by your witness. 

So, set the stage, build rapport and, if necessary, destroy that rapport. It’s your production, and if handled skillfully, your client will benefit by learning what the witness has to say and whether you have reason to question the credibility of those statements based on the witness’s conduct. And that’s the whole show.

Contributing Author

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John Fagg

John Fagg is a member in Moore & Van Allen's Litigation Group. In addition to being an experienced trial lawyer, Mr. Fagg has extensive experience...

Additional Contributors: Valecia McDowell

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