Managing Difficult Witness Interviews – Practical Tips
Every workplace investigator knows the feeling all too well: You spend hours preparing for an investigative interview, but when the interview begins, you quickly realize you are dealing with a witness who is unable, or unwilling, to answer your questions. When faced with a challenging witness, it may feel as though you have been thrown an unhittable curve ball. How do you build rapport with a witness who does not want to share information with you? How do you deal with obstacles like an emotionally distraught witness, or an obstructionist representative keen on disrupting your interview?
Whether faced with the Reluctant Complainant, the Emotional Witness, or the Disruptive Attorney or Representative, this blog post provides tips to deftly handle these challenges:
The Reluctant Complainant. A Complainant may be reluctant to talk with an investigator for many reasons. They fear retaliation by the Respondent or do not wish to see the Respondent “get in trouble.” They did not anticipate that what they considered an informal complaint would result in a formal investigation. In these situations, you may be confronted with a Complainant who is reluctant to share information with you. Often the best way to handle this is to ask the Complainant at the outset, “I sense you are hesitant to talk to me. Help me understand why you feel this way.” Be patient and allow the Complainant to share whatever is on their mind. This approach may cause the Complainant to open up about what they are experiencing. Their answers can lead to additional questions that ultimately get to the heart of their complaint.
The Emotional Witness. It is not uncommon for witnesses to become emotional. As investigators, we see many tears. When you encounter a witness who has an emotional response to being interviewed or asked particular questions, allow them to express their feelings. Carefully acknowledge their expression of emotion with empathy while maintaining your neutrality. For further tips on how to demonstrate empathy while maintaining your neutrality, see The Building Blocks of Building Rapport. Suggest you both take a break for a few minutes to refresh your water. If you are in the same room (not Zoom), offer a bottle of water and ensure you have tissues handy prior to the interview. Another option is to change the course of the interview to a different topic until the witness becomes more comfortable. Once the witness regains composure, return to the line of questioning that led to the emotional response. As a last resort, offer to reschedule the interview.
The Disruptive Attorney or Representative. Attorneys and representatives can play an important role in investigations. However, occasionally they can be disruptive and cause the process to feel adversarial – when it should remain neutral. We have found it helpful to do two things. One, establish the rules prior to the interview. Explain the nature and scope of the investigation and the attorney’s or representative’s role in the process. Advise the attorney or representative they will have an opportunity at the beginning and end of the interview to ask questions. In some situations, you may nonetheless be faced with an attorney or representative who continuously interrupts, attempts to argue with you, or tries to answer your questions on behalf of the witness. If this occurs, remind the attorney or representative the purpose of the interview is to obtain the witness’ perspective on what occurred. You can also advise the attorney or representative that further interruption or coaching could result in termination of the interview. If these advisements do not solve the problem, consider ceasing the interview and consulting with decision-makers about how to proceed.
Final Thoughts: If you employ these techniques when you find yourself entrenched with a difficult interview, you will have a much better chance to successfully build rapport with witnesses. This allows you to gather the information needed to conduct a fair, thorough investigation.
Carrie McFadden is a Senior Associate Attorney with Van Dermyden Maddux Law Corporation. Her practice focuses on conducting workplace investigations, involving discrimination, harassment, retaliation, performance issues, and misconduct.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
