United States: Never Let Them See You Coming—Keys to Setting Up Witnesses Interviews In An Internal Investigation

"So you are the great lawyer I've been told about!  But, you are so young!  I was expecting an old lawyer."

With those words, the silver-haired senior-level executive of the customs broker I was investigating for bribery let me know that his guard was down.  In fact, he seemed relieved and almost eager to help me, a young lawyer that reminded him of his nephew.

This was exactly the reaction I wanted.  We exchanged pleasantries in Spanish over a cup of coffee and proceeded to have a friendly free-flowing conversation.  That conversation revealed that his company was bribing government officials in Latin America, he was a liar, and he had no idea that he had just given me the evidence I needed when I went up the chain to confront his boss.  He never saw it coming.

There are many articles on best practices for conducting internal investigations related to bribery or fraud.  However, at the core of any internal investigation—whether it be domestic or cross-border is—people.  The people at the center of the investigation (employees, former employees, third party vendors, government officials or lawyers) are the key to unlocking the real story behind what has really happened.  Faced with a whistleblower tip of bribery or fraud, a company will undoubtedly look at the underlying documents that paint a scattered picture of events, but it is the people that weave the documents together to tell the story.

Here are some tips on the best ways to set-up witnesses interviews during an internal investigation for optimal effect.

1. Start with the Low-Hanging Fruit. 

Any good investigation looks like a pyramid.  Ideally, start your internal interviews on the ground floor with lower-level personnel.  Why?  First, they will most likely be further removed from the fraud being perpetrated by senior management and thus, more forthcoming about facts.  Second, the ground troops may be actual witnesses to executive-level fraud and more than willing to blow the whistle on management if given an opportunity.  Third, line employees possess great real-time information of the daily happenings within the company, where data is located, as well as a more  accurate view of the "real" heirarcy in a company.  Interviewing these witnesses will be useful in recreating who may be behind the fraud, the centers of power within a company that could have known of the fraud, and where the web of deceit extends.

2.  Pick a Location That Puts Them at Ease. 

If you are going to interview any company employee (be it lower-level personnel or senior executive), find a location that will put them at ease.  If it makes sense, talk to them at their workplace in a discrete conference room or set-up a meeting at a neutral location.  Do not conduct the interview at a lawyer's office.  Pick a location that is open, bright and pleasant to be in.  Aside from location, be a good host.  Coordinate logistics (via phone, not email) so that food, refreshments and ample parking are available.

While it may seem trite: environment matters.  You do not want your potential key witness to arrive at a location and feel instantly uncomfortable by the set-up.  Instead, you want to prime your witness from the start to feel good about what he or she is walking into and who they are meeting.  Your interview and information will flow more freely if the witness is at ease.

For example, the interview that was conducted in the opening scene was held in a United States border town with Mexico, but in a beautiful Spanish style office adorned with Mexican art work, a friendly receptionist and plenty of food and coffee as hospitality. It set the tone for the "warm" conversation that took place thereafter.

3.  The Interviewer Should Bring the Element of Surprise.

Let's be honest, lawyers often think that the best way to get anything done is to be the loudest dog in the block.  That may be the case in an adversarial proceeding with a person that can be easily intimidated to cave or in a cross-examination at trial.  However, in most internal investigations, lawyers are dealing with witnesses from whom the lawyer wants information.

In such a scenario, the old adage is true: "you catch more flies with honey than you do with vinegar."  Thus, to get optimal information from a witness in an internal investigation, the interviewing lawyer should be non-threatening, friendly, and good with people.

As in the opening scenario, the senior executive that I was interviewing came with his guard up fully expecting to go toe-to-toe with a hardened lawyer.  Instead, he found himself with a young friendly lawyer who treated him with respect.  As a result, his apprehensions, anxiety and defensiveness melted away.  In his mind, he had nothing to fear and information flowed my way.  Information that was key for my later interviews and which confirmed to me that this friendly avuncular executive was lying.

4.  Know Your Facts Cold. 

Based on outward appearances, the attorney conducting your internal investigation interview should be pleasant and non-combative.  However, behind the scenes, your interviewer should be prepared for anything.  The single best way of preparing for the unexpected is to know the key facts cold.

In depth preparating would include:

  • Collecting all key documents (especially emails and personnel files)
  • Creating a list of key players
  • Reviewing and analyzing prior interviews
  • Diagramming organizational charts and hierarchy structure
  • Compiling a chronology of events
  • Mapping pertinent locations
  • Charting key processes and relevant products related to the fraud
  • Compiling a vocabulary list of key business terms
  • Researching U.S. and foreign laws related to privacy, attorney-client privilege, and the myriad of legal issues touching on the proported fraud.
  • Creating an investigation plan that tracks key witnesses, issues, potential offenses, documents, and questions that need to be answered.

Why prepare?  Plain and simple, thorough preparation and knowledge of the universe of facts is the single best way for the interviewer to spot an inconsistency, contradiction or bold-faced lie.  Moreover, preparation creates confidence.  A prepared investigating lawyer will not be spending his or her time making sense of basic information, but will be thoroughly present to connect with the witness.

Do you have any other ideas on setting up internal investigation interviews for optimal effect?  Let me know, I'd be happy to help you strategize the next steps in the investigative process. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
29 Nov 2017, Webinar, Los Angeles, United States

This webinar will cover issues that California employers must face when managing a remote workforce of employees who “telecommute” for work. Due to the growing number of employees that work from home, California employers must know how to manage this new remote workforce in order to offer competitive career opportunities for a new generation of employees, while also being careful not to violate the complex California employment laws that govern these work arrangements.

30 Nov 2017, Conference, Brussels, Belgium

The European Competition and Regulatory Law Review (CoRe), the Computer and Communications Industry Association (CCIA) and the Vrije Universiteit Brussel (VUB) are delighted to invite you to our joint conference discussing some of today’s most frequently asked questions: Does competition law enforcement require an update for online markets?

4 Dec 2017, Conference, Virginia, United States

The Government Contract Management Symposium (GCMS) is held annually by the National Contract Management Association (NCMA) in the Washington, DC metro area. Formerly intended for those in federal sector, it has grown to provide training for professionals in both government and industry contracting.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.