Internal Investigations and the Importance of Witness Interviews

This article was republished with permission from Michael Volkov’s blog, Corruption, Crime & Compliance.

Everyone claims to know how to conduct an internal investigation. Given the government’s reliance on internal investigations, law firms have beefed up their internal investigation services. Inevitably, the quality of internal investigations will be mixed.

Internal investigations can cost lots of money, especially when conducting a global investigation. Avon and other companies have been hit with astronomical legal bills in authorizing and conducting internal investigations needed to resolve government enforcement matters.

Companies have responded by managing internal investigation expenses. One area where law firms reduce costs is in conducting interviews – assigning junior attorneys who lack seasoned experience to conduct interviews.

This trend, while cost-saving, is a classic example of “penny wise and pound foolish.” Instead of saving costs through errant strategy calls, companies need to look for other areas to cut costs. For example, too often internal investigations lose focus. As a consequence, internal investigators often conduct unnecessary interviews or document searches.

A better use of resources is to focus an investigation and most importantly, have senior, experienced attorneys conduct many of the interviews. There is no excuse for delegating important interviews to a junior attorney. It is easy to justify delegating the important interviews – client expense.

However, there are a lot of reasons for senior attorneys to conduct witness interviews. It is important for an investigator to take the measure of the witness. The substance of an interview is critical but so are some of the more subtle issues – credibility, surrounding behavior and demeanor. A witness who tells his or her story to a junior attorney is unlikely to be challenged on the facts or presented with conflicting documents and confronted with hard-to-answer questions.

An experienced investigator knows when a witness is deceiving based on experience from conducting trials, questioning witnesses and keeping focus on the important issues. Junior attorneys with little to no experience in these areas are likely to ignore subtle signs of deception, challenge a witness or test a witness’ credibility. If the company is dedicated to discovering the truth in an investigation, they will reserve the important witness interviews for senior and experienced attorneys.

A senior attorney can prepare for important interviews more efficiently than a junior attorney. They understand the importance of focusing the interview, weaving in documents that are important to review with the witness and the objective of the interview.

A company that sends junior (or inexperienced) attorneys to conduct witness interviews is sending the wrong message. Witnesses who do not want to disclose important information feel more comfortable when a junior attorney questions them.   They are more confident during the interview and are emboldened to deceive.

To ensure that witness interviews are conducted in the most effective and efficient manner, companies need to consult with outside counsel to plan for and designate the important interviews. To reduce cost, the investigator has to ensure that the universe of witness interviews is limited to those that are relevant to the issues in the investigation.

Investigation costs can be managed and continuously monitored. Every step in an investigation has to questioned.  Are documents likely to be found by searching a specific office? Will interviewing a specific person result in relevant evidence?

While it is important to manage investigation costs, the cost and the benefit of each step in an investigation has to be weighed. Witness interviews are critical to an internal investigation and appropriate resources have to be assigned to conduct the important interviews.