One-on-One Time and a Light Touch: Tips for Conducting Interviews on Legal Matters

I’ve spent much of my time over the last few months interviewing current and former employees of clients, as part of either internal or external investigations. It’s probably my favorite part of the job.

But things can go astray. In this article I want to center on two lessons of which I have been reminded repeatedly.

The first involves who participates in the interview. Many organizations have internal legal or compliance professionals who will want to be involved in the interviews. I wholeheartedly understand and support that desire. Typically, that internal team will be called upon to offer opinions on what to do, based on the information gathered in the interviews.

That’s obviously much easier to do if they are present for them. But the presence of internal individuals can, in many instances, have a chilling effect on what is said. I realize that many people think witnesses are more likely to feel comfortable talking with someone they know than a stranger.

But I think that belief can be mistaken.

Ask yourself if you are aware of situations in which someone confesses intimate secrets to a stranger while sitting next to them on a plane or in a bar. Why are there Internet pages where people anonymously reveal their inner-most truths? The reality is that many people, either because of fear of judgement or shame, are less likely to be entirely honest with someone they know well.

So, when I conduct interviews with internal professionals present, I always ask them to give me some time with the witness alone. And I would guess that something close to 90 percent of the time, the internal witness says something in that portion of the interview that they didn’t feel entirely comfortable saying to inside counsel.

Sometimes that information relates to the people who were present, but more often it just relates to information that could have political fallout. If you’re a professional conducting an investigation on behalf of your employer, I strongly encourage you to involve an outside person, and give the outside person some alone time with your witnesses.

The second point is that typically, you’ll get far more information with kindness than with threats. While I will concede that there are exceptions to this rule, I’ve confronted many situations in which a witness is hesitant to talk. While it’s possible to threaten the individual, including with the risk of job loss, in my experience, taking time to build trust and earn the witness’s respect is far more effective than wielding a big stick.

Many years ago, I was fired from an investigation because the client decided they wanted someone who had been a former U.S. Attorney. I was bummed. But my disappointment was short-lived. The former U.S. Attorney conducted their interviews like a bull in a china shop. Witnesses stopped cooperating with the investigation, and started complaining.

Within a month, I was back on the investigation. It turns out that the ability to make people comfortable is more important than a history of having worked with the government. When you’re doing an interview, you have to give the witness an upfront warning and explain that you don’t represent them. I think it’s completely improper to lie, but for most witnesses, when you’re comfortable that the person doesn’t have personal liability in the matter, share that belief, even if you have to use caveats. You want to sing Carole King’s winter/spring/summer/fall song: “all you have to do is call. You’ve got a friend.”