What are the characteristics of a good interview in the context of an internal investigation? Is there one technique you can use which will provide you the results you want to achieve? How should you think through your questions and document review prior to the investigation? In this episode, I explore these and other questions, in an interview with noted internal investigation expert Jonathan Marks, a partner at Marcum LLP for this piece.
Marks began by making it clear there is no one right way to prepare for and conduct an interview. What is important is that you have a plan and execute on that plan. He said he begins by obtaining an understanding of what the various stakeholders want answers to. This could include the Board of Directors, C-Suite executives, the General Counsel and legal department, the Chief Compliance Officer and compliance function or up to government regulators such as the SEC or Justice Department.
Marks feels it is important to interview witnesses as soon as you can reasonably do so to prevent multiple witnesses from getting together and coordinating their stories. You should recognize you are never going to have perfect information so you should try and tie down the story. If the witness is not an English speaker, you should have a translator present. Marks suggests having a second person with you to take notes so you can watch the witness’s facial expressions and body language, noting, “There have been a lot of situations where I have found that being an effective listener is much more critical than being an effective note taker. Listening to what the interviewee is saying when you ask them the question is critical because it sets everything up. Having somebody there to take notes gives me the opportunity to really focus in on a couple of different things. It allows me to focus in on their verbal cues. It allows me to focus in on their body language. It allows me to focus in and listen to what they’re saying, or a lot of times what they’re not saying.” He cautioned that the note taker should be free from bias and subjectivity, simply taking down a detailed recitation of the witness’ testimony.
Interestingly Marks does not view his interviews as putting the witness “in the box”. He attempts to establish a rapport with the witness so they will be more forthcoming in their responses. Marks said, “I don’t view this as a contentious exercise. I never have and I never will. I view this, like I said before, as building rapport. If somebody feels like you’re cross-examining them, or it’s a very structured and not free-flowing conversation, allowing them to answer the questions in a comfortable and a secure environment.” It is all an effort to garner an understanding of what facts the witness has, what the witness may not be aware of and determining others, both inside the organization and outside, who might be potentially involved.
Marks emphasized that an investigation should not be viewed as an interrogation. He avoids what he termed “loaded questions” such as “Why did you bribe the inspector?” Instead, he designs his questions to circle around such a point. He also notes the age old maxim to avoid compound questions. He concluded by noting you should try and develop facts during the interview, get to exactly what occurred, when did it happen, where did it happen, who, if anyone else, was present with you. He also added you can use other lines of inquiry such as “Who else may know well of an information? How did this happen, or do you know how it happened? Why did happen? Are there notes, documents, phone messages, emails or other evidence that you could provide to me that support what you’re saying? A lot of times in an interview if somebody is willing to talk they usually have something that they could provide.” He concluded by intoning, “A lot of times if you don’t ask you don’t get.”
Marks believes it is a best practice is you get everything down immediately so “as soon as the interview is over I spend time with my partner in the interview with me going over all our notes, making sure that we both understood exactly what was said and how it was said. If there’s any observations they I had during a question that may have not been in the write-up, we add those things.” He believes this is important because “the longer you wait, the more inaccurate your account of what happened becomes. I’ve always made it a practice that after the interview we get right to it, we write up our notes. We agree what was said, how it was said and add any other observations that we had during the interview process.”
Marks concluded by recalling another analogy he consistently refers to in any discussion of internal investigations, that it is a “chess match”. An interview is also a chess match as “When you’re playing chess you have to think a couple of moves ahead if not three, four or five. We talked about in and out, out and in methods of conducting interviews when there’s more than one individual or several people that might have information related to the allegations.”
Marks also discussed some strategies around the interview process. The first is what he termed the “inside-out” strategy which he would advocated using if allegations extend beyond the enterprise. In this technique, you interview people inside the organization first, and then maybe go out to third parties. The converse is an “outside-in” strategy and you can do a combination of both. He also noted one other technique which is conducting concurrent interviews. Marks advocates using this strategy “If you think people are going to talk or you think there’s potential collusion. Conducting simultaneous interviews sometimes prevents those individuals from coordinating and collaborating on their story and what they’re going to tell you.”
Three Key Takeaways
- There is no one right way to prepare and do an interview.
- The interview should not be confrontational.
- The interview, like the entire investigation process, is a chess match.
A witness interview is like a chess match, you must think several steps ahead.