A Bridge Too Far: Five Tips For Occasions When A Representative’s Conduct Becomes Disruptive
In our prior blog post, “Build Bridges, Not Barriers,” we discussed how to make the most of an interviewee’s representative during an interview and ways to head off any potential friction in advance. This blog post discusses some suggestions and options investigators have when a representative’s conduct crosses the line into disruptive behavior. While the vast majority of representatives do not cross this line, these tips will help you if you ever encounter the rare exception.
#1 Offer To Treat Excessive Objections As “Standing Objections”
Our previous blog post noted the importance of verbally defining the role of the representative in terms of how they can improve the quality of the interview and aid the investigative process. Occasionally, representatives might disregard that advice and become an obstacle to information gathering. This sometimes takes the form of excessive, repeated, long courtroom-style objections after every question. If you have tried our other advice[1] to no avail, you can compromise with the representative by offering to consider their objections to be “standing objections” to all future questions. Representatives acting in good faith will almost always accept this offer because it saves them some hassle, takes pressure off of them to “make their record,” all while preserving their value in the eyes of their client. If a representative declines this offer or continues objecting, this approach tends to flag the objections as primarily performative (and thus, objectively inappropriate).
#2 Go Back To Ground Rules
Even if you have followed our prior advice to frame the representative’s role as one of primarily supplementing or contextualizing the interviewee’s statements,[2] a representative might still inappropriately interject between questions and responses. This sometimes takes the form of preempting an interviewee’s response by objecting, offering “context,” reframing/altering the original question, coaching the interviewee on how to respond, or inappropriately questioning the question.[3] While this frontrunning of responses can sometimes reveal important clues about the representative’s thought process or strategy, if the interjections interfere with obtaining accurate, candid responses, investigators should address it by more explicitly defining how the interview will proceed. For example:
I understand your concern and appreciate the additional context you can offer. However, I will ask that you let Ms. [Witness] respond to my questions before interjecting. If she understands the question, she can respond; if not, she can ask me to rephrase. I can always ask follow-up questions if I need additional context. If you have any clarifying context to add, I just ask that you wait until after she has finished speaking or until the end of the interview, when you can ask any clarifying questions if they are still needed.
#3 Remind Them That Credibility Is Always Relevant
If a representative’s behavior appears to be meaningfully altering the character or content of the interviewee’s statements, an investigator can sometimes mitigate that behavior by mentioning the importance of credibility. For example, a representative might request an excessive number of lengthy breaks or consistently ask for breaks immediately before an interviewee responds to critical questions. While investigators should be careful about reading too deeply into a representative’s or interviewee’s request for a break in the interview to confer with one another, there comes a point where the number, length, frequency, and timing of requests for breaks can become a legitimate credibility issue.[1] At that point, an investigator can (and out of fairness to the interviewee, should) politely point this out if they may weigh the behavior as a credibility factor. The same applies if an interviewee appears to be seeking or receiving non-verbal signals from their representative about how to respond (e.g., looking at the representative after every question, the representative nodding or elbowing their client before or during a response to a question).
#4 Take A Time Out
While most interviews are not adversarial, if a representative’s conduct is pushing the tenor in that direction, investigators should consider calling for a break. Impartiality is a foundational requirement for a workplace investigation. It can be difficult for an investigator to maintain their impartiality (both in appearance and actuality) if they allow themselves to be drawn into repeated adversarial exchanges with a representative. Investigators should remember that they, too, are human beings with feelings, even if a representative seems to be forgetting that. Taking a break often turns the temperature down in an interview and permits the investigator an important opportunity to recenter themselves and reassess their approach to the situation.
Investigators may also find some value in using the break as an opportunity to confer with the representative outside the presence of their client. As we noted in our prior post, representatives are sometimes under pressure to demonstrate the value of their representation to their client; some representatives demonstrate this in a more performative or aggressive way than others. However, outside the presence of their client, they might be a little more amenable to feedback about their style. This is a good time to remind them that while you respect their role as an advocate, you are a disinterested third-party fact finder without a dog in the fight. If you feel that the representative’s behavior is negatively affecting their client’s credibility, (politely) let them know the specific behaviors that might be doing a disservice to their client if they continue.
#5 Address The Interviewee Directly
When all else fails, investigators may be best served by engaging directly with the interviewee rather than the representative. At the end of the day, it is the interviewee, not the representative, who will likely face the consequences of a representative’s disruptive behavior. At best, a disruptive representative can impede an interviewee’s ability to fully articulate their perspective about critical issues. At worst, an interviewee may face disciplinary action because they were not forthcoming or did not provide full, complete, or credible responses during their interview. While an investigator should not completely ignore the representative, they can keep their interaction limited to statements of acknowledgement before turning their attention back to the interviewee. For example, “The objection is noted. Ms. Smith, do you understand the question I asked?” or “Understood. Ms. Smith, you can answer the question.”
[1] As noted in our prior blog post, investigators can mitigate repeated objections by respectfully acknowledging the representative’s concerns, but explaining that courtroom-style objections are not applicable to fact-finding internal interviews that are outside the courtroom (or deposition) setting. Advising the representative that you will allow them time to ask clarifying questions of their client after you conclude your questioning may also dissuade repeated objections.
[2] In our prior blog post, we noted that investigators can head off potential disruption early in the interview by telling a representative how they can be most useful to the investigative process (providing contextual background, decoding trade jargon, and clarifying unclear interviewee responses), as well as how they might undermine the quality of their client’s responses (interrupting, coaching, or prompting certain responses).
[3] In certain circumstances, questions about your questions can be completely legitimate and helpful. For example, there may be ambiguities in a question that an investigator may not recognize in the moment. However, questioning a question is inappropriate when the purpose is to coach a specific response, stall, make arguments, or otherwise derail the information gathering process
[4] Even if breaks are not an issue, it is a good practice generally for investigators to note the time a break begins and when it ends, either in their interview notes or verbally on the record.
Van Dermyden Makus benefits from the kind of expertise that can only be gained through the collective experience of several thousand interviews. Out team approach means every investigation we conduct benefits from that experience. Chances are, whatever difficult interview (or investigation) issue you are facing, we have dealt with something similar before; if not, we welcome the new challenge.
