Effective Witness Interviews? What Happens When You Get It Wrong.

So what happens when the organization that's supposed to be the organization in terms of human resources, and in particular, what employers are supposed to do when an incident happens that requires an investigation, gets sued and loses, and the judge tags them for questions about how they conducted the investigation, whether it was a serious investigation, and what that all means.

And in this video, we're going to talk a little bit about the do's and don't of both an effective investigation, and effective witness interviews, because in the end, witness interviews are the be all and all, for an investigation.

Hey, my name is Mike Corwin, and I work with employers and law firms and helping them set up effective investigation processes, and I teach effective witness interviews.

So let's talk about this award against Sherm, the society for human resources management.

And this was an $11.5 million jury award, including punitive damages.

And by the way, punitive damages is one of the ramifications if you're found to have not conducted an adequate investigation, or worse yet, a pretext investigation that was actually designed with a foregone conclusion in mind.

So we're going to look at that.

In SHRM's case, they've defended themselves and say, all their practices were fine and that they will be appealing.

But this is pretty radical because a lot of human resource departments rely upon the information that comes from ShRM, and in the end, this really could be a groundbreaker.

All right, so now we're going to talk very quickly about what the judge ruled in this case in allowing the case to go to trial.

SHRM had filed for what's known as the summary judgment motion saying there's no dispute in the facts, and as a result of that, there's really no basis for this case to go forward, and that the case should be dismissed.

The judge said, no, SHRM was faced with an allegation of discrimination by an ex-employee who had later been fired supposedly over performance issues, and the plaintiff sued for discrimination and retaliation based upon what it said was not a legitimate investigation conducted into the allegations raised.

What the judge said is there's a reasonable basis to look at whether the investigation conducted by SHRM was non-existent, superficial, and whether they took actually the steps necessary to determine what happened.

We call that a failure to investigate or what's known as whether the employer did an adequate and sufficient investigation to uncover the truth because employers have a chance to, when something happens, to correct a situation if it exists.

And part of the way that you do that is through an effective complaint and investigation process.

And by the way, that is mandated under California's workplace violence prevention law.

Here's a couple things to look at is when we consider both the investigation and witness interviews.

And by the way, whether it's for litigation purposes or internal investigation purposes, an effective witness interview is the backbone for your entire investigation.

It is literally the thing that you really must master in order to do an effective investigation.

Now, the 1st thing that you have to consider is, do you have an investigation plan that is designed to get to the truth of the allegation, whether it occurred, whether it didn't occur, who is involved, all of those types of things?

You've really got to organize and create an investigation plan.

Who are you going to interview as part of this plan?

In an internal investigation, you have to structure your witness interviews in a certain way.

And that is always to start with the complainant.

Next, you interview the respondent, and in each case you're going to ask them, is there anyone I should talk to, and then you should interview those people, and in fact, ask that same question to them as well.

Is there anyone you think I should talk to about this?

Now, you should never conduct these interviews with the people together.

They should always be done separately.

And you've got to do really good notes.

I was often hired as a consultant to look at the adequacy and sufficiency of an investigation, and the 1st thing I look at is the manner in which the investigation was conducted.

Who was interviewed?

What types of notes were taken?

What questions were asked, what types of follow-up was done, what type of report preparation was done, and how the findings were found, Were they based upon the actual information developed, or were they just kind of cherry picked?

And then finally, the question comes in as to truthfulness or veracity, and how that was determined.

Now, for litigation investigations, it's slightly different because you're not having a complaint and a respondent, you're actually building the case for the plaintiff, and so that you're looking at, who do you need to interview that's going to provide the maximum amount of information to you.

Now, one caveat in all of this for plaintiff lawyers is you have to be able to ask the difficult questions.

The questions that may not give you answers that jive with your theory of the case, because in the end, that's for 2 reasons.

One, you want no surprises.

And two, you have an actual duty to examine your claims and the claims that you may bring on behalf of your client, you have to actually look at the pros and cons and see whether you can get there or not.

There's a process that you need to follow to ensure that your investigations are effective and that your witness interviews are effective.

You can't cherry pick who you interview.

And that goes true for both employment purposes in an employment investigation and in a litigation investigation.

In a litigation investigation, if you only talk to favorable witnesses, you're going to have a lot of surprises when any unfavorable witnesses or witnesses with unfavorable information are brought forward.

In an internal investigation, you need to know the actual situation, what occurred so that it can be properly remedied.

If you don't properly remedy it, you're going to be on the hook, and if your investigation was designed to get a specific outcome rather than follow the information that is part of your investigation, then you're really going to have a problem, and that could lead to punitive damage awards. Considerable.

And even in a situation where it's like workplace violence where maybe workers' comp insurance will cover the medical bills and the physical harm, you knew something was happening, you failed to investigate it, you did not do an infective complaint process.

All of those things can show bias on your part, and that can lead to a punitive damages award beyond workers comp.

So you have to really be able to look at these things and do it without having a jaundiced eye.

The purpose of witness interviews is not to protect you.

The purpose of witness interviews is to get to the truth.

When you conduct an effective investigation, You're starting with your interview process.

Who are you going to talk to?

What are you gonna ask them?

Who will they be able to steer you to that may also know about this information?

Then you've got to put that together.

You've got to look at where you get corroborating information, where it's not corroborated, where you may have questions about credibility.

Those types of things need to come into play.

Now, in addition to that, you've got to be able to document your witness interviews.

There are a lot of people that think the best way to do that is doing a recording of the interview.

I personally don't like that.

My main reason for saying that is I think people tend to be very self-conscious when they know they're being recorded and they're not going to be as forthcoming to you as part of the interview.

But that means you've got to be able to do really good witness interview notes.

You have to know how to do that.

You have to be able to capture not just what they're saying it, but how they say it in their words, in case you need to go back with a handwritten signed statement or an affidavit or declaration.

So you have to be able to document it properly.

Then you've got to take the information you get and actually summarize it into a format that you can use that we call those a witness interview summary.

You can do a topic based, you can do chronologically based, my personal preferences, topic based.

I find it's easier to get to what's important within the interview by doing that.

But the bottom line is everything needs to be documented.

In other words, I'll give you a great situation.

Many years ago, I did a workplace violence, allegation, incident as a 3rd party fact finder for the city of Albuquerque.

Conducted my full investigation, it was pretty clear that the incident had occurred, and that it should not have occurred, and the person was later terminated over this incident.

The person then turned around and sued the city of Albuquerque, and initially one of the people that I interviewed during the investigation claimed that what I had put in my report was not what he said.

However, at trial when he was put on the stand and given a copy of my interview summary and asked to read it, he read it and he said, yes, this is what I said.

So that's a key reason for why you need to be able to document these things very carefully, very accurately, and very effectively.

If you'd like help with setting up either an effective investigation process for your team, whether it's for your law firm or internally for your department, I can help you with that.

I can also help train you with how to conduct effective witness interviews.

Go ahead and schedule a call.

And by the way, I'll be doing a workshop on effective witness interviews come in the coming month or so.

So please stay tuned.