Internal Investigation interviews usually launch with each investigator’s homebrewed instructions: a little spiel about the investigator, a basic description of the investigation process, an explanation of mutual confidentiality expectations, a brief discussion of the attorney-client privilege when it applies, a reminder of the witness’s duty to cooperate, a friendly warning about importance of telling the truth, and clear instructions about the need to understand a question before answering it.
Great investigators have their script committed to memory because they know that even minor variations in delivery can raise fairness questions down the road. Indeed, we investigated allegations that a Title IX campus investigator was biased because, among other things, the investigator’s instructions to the parties varied slightly. And we do mean slightly.
So how can a rock-solid interview launching script ever be a waste of time?
Because we’re delivering the same message, the same way, over and over again when we could be sending out identical versions to everyone in advance of their interviews. Consistency goes up, risk goes down. We save time. Witness stress goes down. And, of course, written instructions become Exhibit A if questions are raised down the road.
Verbal instructions not only take valuable time away from getting to the bottom of the facts, but they can also waste time because interviewees – especially parties to a dispute – tend to be thrown off by the prefatory stuff (assuming that they actually hear and understand what we’re saying, an open question in stressful situations). We have all seen the interview atmosphere suddenly grow cloudy upon the delivery of a legally sufficient “Upjohn” warning. It casts a pall when we tell people that they do not “own” the attorney-client privilege and that the employer may choose to waive it sometime in the future, without the witness’s consent. Sometimes, we want that pall. Mostly, we don’t. Why create uncertainty, anxiety, and mistrust just when you are trying to do the opposite? We have all watched those gears turn in a witness’s head: “is she saying I will be left to twist in the wind? Be hung out to dry?” And we’re all familiar with post-Upjohn remark we recently received from a CFO in a corporate accounting fraud investigation, even though he wasn’t close to being a target: “Do I need my own lawyer?” That may be the best way to start some interviews, but not many.
Put It In Writing
So the next time you find yourself polishing your script for another delivery, think about putting it in writing and sending it out in advance. You only need to write it up once. And you will save even more time in the interview, letting you and your witness get down to brass tacks faster.
Through its network of attorney investigators and project management technology, Aequitask delivers fair, fast, thoughtful, and thorough workplace and campus investigations on time and on budget. Learn how your organization or law firm can get an expert discrimination, harassment, Title VII, Title IX, fraud, conflict of interest, or other compliance investigation and a highly defensible final report within days or weeks and at a predictable fixed fee by visiting www.Aequitask.com or calling 1-800-554-1081.