A fact investigation might be conducted by outside investigators, paralegals, law clerks, or associates, but the attorney is ultimately responsible for overseeing the investigation and redirecting it if necessary. Knowing the law of the case will help point your investigation in the direction it needs to go, but you may need to recalibrate along the way. Interviewing and fact investigation are essential skills that have to be mastered through practice. There are some tips, however, that can ease that process when you are doing it yourself.
The Investigation Plan
For even the most routine investigation or interview, make a written plan. Identify what facts you already have and evaluate their reliability and what needs to be verified. Write down the ultimate goals of the investigation. For example, are you trying to identify potential defendants and all possible legal theories against them? Identify possible defenses? Evaluate jurisdiction issues? Identify and interview all eyewitnesses? Take a little time for brainstorming. Identify all possible sources of information. Chart your action items in some logical format you can track.
Use available documentary sources. Your first piece of investigation may be determining how public records are kept. How do any relevant government agencies collect information? How are records maintained? How are requests for information handled? Some records just aren’t available online. Old plat maps, tax records, old court files, police reports, insurance investigations, educational records, personnel documents, or medical records can all generate valuable information and witnesses. Some will require a release and others just a formal request.
Hit the road. In the process of investigating, sometimes the most effective means for getting information is to get out from behind the desk and into the field. That one-hour site visit to a location two hours away may save an additional 20 hours of work if it gets you headed in the right direction.
Having someone out in the field may also be the way you need to seek out witnesses—canvass a neighborhood for eyewitnesses to an accident or talk to regulars at a bar who may provide an alibi for a criminal defendant. With some safety precautions in place, meeting with key witnesses in their own environment (at their home, place of work, etc.) can lead to information in addition to that you gather directly from the witness; you can learn a lot about the witness from just looking around.
Interviews are a key part of a factual investigation. In addition to gathering information, interviews also solidify the issues in the mind of the witness and commit the witness to a version of the facts. All lawyers do some type of interviewing, but most receive little formal training in this area during law school.
Preparing for the interview:
- Run your conflicts checks. As new information is gathered and new witnesses are identified, it can be hard to keep up. Make sure that all parties and related entities are entered and run for conflicts regularly during the investigation to avoid any ethical dilemmas that may arise.
- Outline your interview. Your interview should have a beginning, middle, and end. Prepare some introductory statement explaining who you are and why you are there. Be careful not to disclose any client confidences in the process. Anticipate questions the witness may have for you about the matter and plan how you will respond in advance.
- Prepare an outline of key questions. Your investigation plan should help keep you on track and guide your questioning. Prepare a structure for the interview that will allow you to develop a bit of a rapport. Start with easy, basic questioning and structure your outline so that questions lead naturally into each other. Develop a rhythm as you move into the more challenging questions. The outline is a guide, but you want enough flexibility to follow up on new information or go in unexpected directions.
- Give thought to special needs of the witness/client. Make sure the location of the interview is physically accessible to the person you will be interviewing. If necessary, have a sign interpreter present. For an individual for whom English is not a primary language, a native-language interpreter may be helpful. Also remember that interviewing a child witness may require you to obtain permission and have a parent or guardian present. If clients or witnesses require a companion to accompany them to the interview, you should be sure to have a place for the companion to wait comfortably while you conduct the interview in another room.
Conducting the interview:
- Recording an interview. If you intend to record an interview, make sure you obtain consent before the recording starts. Confirm consent again on the record and have the witness confirm that consent was previously given. State the date and names of the participating parties. If the interview is by telephone, state this on the recording, and try to confirm if there are other people listening at the other end of the call.
- Word choice. Because this may be the first time someone has asked about the incident, your interview can impact how a witness recalls certain information. With each retelling, the witness is committing to a version of the facts. That makes it imperative that you prepare for the interview, including word choice for key elements relating to your matter. If you represent passengers who were injured when their parked vehicle was hit by a moving car, you may want to avoid using the word “accident” in favor of “collision” when asking about what occurred. “Accident” assumes facts that may not be supported by the investigation, and use of the word can influence the witnesses and their interpretation of events.
- Physical surroundings. Whether you are in your own office or out at a location, minimize distractions. If possible, place yourself so the witness is not facing a window and so the witness does not have his or her back toward a door. Minimize distractions as much as possible.
- The power of position. You can create an impression just in how you position yourself and the other person. This may be a strategic decision if you know something about the personality of the person before your interview. An interview conducted from behind a desk creates a formal tone and puts the interviewer in a position of authority, while sitting in a chair across from the witness is less formal but may make handling documents and notes more difficult. Sitting at a rectangular table with the interviewer in the middle and the client or witness on the end is still informal but makes it easier to take notes and handle documents. If the interviewer is at the end with the client or witness in the middle, this creates a more formal tone with the interviewer in the seat of authority.
- Your voice. Your voice can be a tool that is helpful or harmful in your process of gathering information. In general, you want to use a calm and neutral tone that may be slightly slower and more enunciated than your normal rate of speech. If conducting a telephone interview, turn the corners of your mouth up in a “smile”—it makes your voice sound friendly and approachable. Witnesses sometimes get angry and agitated. Rather than matching their volume to try to be heard, drop your voice and continue to speak in a softer, quiet tone. The witness will tend to drop his or her voice to match so as to hear what you are saying. Remember the power of silence. You may sometimes need to ask a difficult question and sit silently for a minute. Silence can encourage a witness to speak to fill the void, or it can exert some psychological pressure to be more truthful.
- Vocabulary. Avoid legalese. Avoid terms of art or business buzz words. Think about your audience. Estimates put an average U.S. high school graduate’s vocabulary at 700 words in the course of normal conversation and 1,200 words for the average college graduate. Adjust your communication accordingly. Know your audience. In general, avoid slang, but if you can use it convincingly, it might be effective for an interview with a teenager. If a witness uses slang, colloquialisms, or idioms that are unfamiliar to you, make sure to have the witness explain the intended meaning.
- Make note of body position, eye contact, etc. In addition to taking notes about what a witness says, make sure you also take note of how the person says it. When typing up your witness memo, you will want to refer to specific observations rather than just “the witness appeared to be lying” or “the jury may not find this person credible.” Three months from now you probably won’t remember how you came to that conclusion without some frame of reference.
- Consider the phrasing of questions. Open-ended questions tend to solicit more information and may make it easier to follow up with questions you already intended to ask, but make it appear that they are flowing naturally from the conversation. (“Tell me what you remember from that night.”) However, a hesitant or skeptical witness who is reticent to answer any questions will not offer much information in response to this type of question. You will need to adapt your style to the type of witness you are interviewing. For example, “explain why you did that” versus “what I’m trying to figure out is why you took the clip out of the gun if you thought it was empty.”
- Focus on what is actually said. It is easy to get caught up in thinking about your next question, taking notes, or being tied to your outline so much that you miss the opportunity to follow up on new information. Use active listening techniques to reconfirm what you are hearing (“So, what I hear you saying is . . .”) and to confirm the timeline for events. Be conscious of how your own personal biases (positive or negative) may creep in and interfere with your objectivity.
- Get documents. If there are documents mentioned that are readily available, get them or make copies before you leave. Make note of any documents you will need to follow up on. If diagrams are helpful, have the witness draw what is being described and label all the elements. Make sure to have the witness sign and date the drawing. Did the client keep a calendar or a journal about the events? Get a copy.
- Concluding an interview. As you conclude your interviews, there are some common questions you can ask every witness. “Is there anything else you remember?” “Is there anyone else I should talk to?” “Have you been contacted by anyone else regarding this matter?” Having an investigation plan will also help you verify you have covered everything.
Looking for Mr. Right
When trying to locate potential witnesses or interested parties, consider some of these sources:
- Old phone books—past addresses can give a clue to current location.
- City/county directories might give valuable information about a business or a clue to where a witness may be now.
- Courthouse files—old litigation files, bankruptcy filings, or divorce files can contain a treasure trove of information about people.
- Voter registration, car registration, and driver’s license records.
- U.S. Postal Service. If someone has moved and a forwarding order is still in effect, you may be able to obtain the new address by sending a letter marked “DO NOT FORWARD. ADDRESS CORRECTION REQUESTED” to the old address.
- Business license records might also yield financial or credit information.
- State licensing agencies can usually provide current information on licensed persons.
- The National Archives and Records Administration in Washington, D.C., or the Family History Library of the Church of Jesus Christ of Latter-day Saints may be able to help in locating a lost relative.
- The U.S. Social Security Administration may be able to help in forwarding a letter to a party if all other means have been exhausted and the letter contains something the party is likely to want to know.
Practice Makes Perfect
Expertise requires repetition, and interviewing and investigating are skills you develop with practice. Don’t be afraid to seek out available trainings to hone your skills both in asking questions and assessing people’s answers and credibility. With adequate planning, a clear scope and purpose, and an understanding of your client’s needs and goals, you can conduct a competent and cost-effective investigation.