Interviewing Difficult Witnesses

BY Gene R. Thornton, Esq., AWI-CH

One of the things I like best about doing workplace investigations is that—despite interviews all following the same basic pattern of seeking out information—every witness is a unique person acting in a unique situation.  It is important to be able to quickly establish a relationship of trust and confidence.  I enjoy the challenge of developing an immediate rapport with witnesses so that they feel comfortable talking to me.  Occasionally, witnesses are a little more unique than I bargained for.  Here are a few of the more challenging situations that come up from time to time, and how I have learned to deal with them.

HR Hanna

My workplace investigations actually begin with the first contact I have from an employer representative seeking to hire me—usually the HR manager.  “Hanna” is a hypothetical HR manager I occasionally encounter.  Even as Hanna is hiring an investigator whom she knows is dedicated to being impartial, she is systematically attempting to bias my investigation.  She will casually let me know for example that the complainant is a “bad employee” with a “poor attitude,” not a “team player” and frequently complains about conditions at the company.  Then Hanna will turn around and tell me how valuable the respondent is to the company and how he and the CEO go “way back” together.  When a company has general counsel, they can be even more aggressive about attempting to steer my investigation toward a conclusion that exonerates the company and can be used as a hammer against the complainant.

I do take note of all this information—it may all be true; and it may even be relevant.  But I do my level best not to allow my investigation to be tainted by such information from the outset.  I go into an investigation prepared to follow the evidence where it leads—even if that means exposing the CEO’s college buddy as a serial harasser and a buried land mine within the company, just waiting for the wrong person to cross him, at which time he will explode and cause grave damage within the company.  Sometimes my findings are against the company and unwelcome at the highest level of management.  “Don’t ever hire him again,” I can almost hear the CEO instructing Hanna.  So be it.  I’m a professional workplace investigator. It goes with the territory.  I pursue the truth of a matter even if doing so costs me future business.

Ted the Intimidator

“Ted” was a respondent whose subordinates, both female and male, had told me about numerous sexually-inappropriate remarks he had made at the workplace.  After giving Ted my usual opening statements about my role as an independent and impartial fact finder, and that any retaliation against persons participating in the investigation would not be tolerated (see my blog on the 15 Commandments for all of my standard admonitions), Ted became very combative.  He tried to take control of the interview by declaring angrily that he wanted me to know that whoever told me he touched her was a liar and he wasn’t going to stand for his reputation being ruined by a lying subordinate.  He might have to sue her for slander.  I waited patiently for him to finish, and then said, “Actually, Ted, no one has accused you of touching them.  And I did not say it was a woman who complained about you.  Why did you think this was about a woman accusing you of touching her?  Is there some woman you’ve touched in a questionable manner?”  He had no good reason.  It made me suspicious that he had indeed touched a woman, but she had just not complained about it for whatever reason—yet.

Then Ted made some insulting remark about lawyers in general and threatened, “I don’t know if I’m going to do this.  Maybe I’m going to have to get a lawyer of my own.”  I said, “You’re certainly free to do that, Ted, but I need to proceed with my investigation regardless.  I hope you will cooperate in answering my questions now because, if you refuse to answer my questions, then I won’t have much evidence on your side of the case to consider.  In any event, you will not be permitted to have a lawyer present when I interview you.  This is your opportunity to tell me your side of the story.”  He settled down and became more cooperative.

I don’t know what Ted hoped to accomplish by dealing with me in such an aggressive fashion.  Did he seriously think that threatening a lawyer to get his own attorney was going to intimidate me into not doing my job?  Litigation attorneys like me deal with tough opposing counsel all the time.  I do remember thinking to myself when he tried to intimidate me, “I don’t know if he did what he’s accused of, but I do know one thing—that man is a fool.  He just threatened the person who holds the fate of his career in his hands.  Good thing for him I have thick skin and am dedicated to providing him with due process.”  I described his hostile reaction when I filed my report.

Coy Candace, Reluctant Complainant

“Candace” was a complainant who, when she made her complaint, made it clear she did not want the employer to do anything about it.  Apparently, Candace just wanted to vent and, perhaps, have management subject the person she had accused to more scrutiny.  The problem with that hope is that employers have a legal duty to investigate complaints of workplace misconduct and take appropriate remedial measures—even when the complainant prefers that the employer do nothing.  So, there I was: interviewing Candace, a reluctant complainant.

Candace squirmed and hemmed and hawed her way all through the interview.  Getting information from her was like stealing a dragon’s gold.  If I were mechanically examining her demeanor, it would have been easy to conclude that she was not telling the truth.  However, under the circumstances she was in, the more plausible explanation was that she was desperately afraid of retaliation for bringing forth a complaint.  By tactfully probing the “why” behind her reluctance, I learned that the employer had a demonstrable pattern of retaliating against complainants such as Candace.  Her half-courage to complain nevertheless, when coupled with my persistent pursuit of the truth, led to the discovery of a systemic problem at the employer that was actually more concerning than the incident Candace was complaining about.

Waterworks Wanda

On one occasion, I was interviewing a woman, “Wanda,” about her assertion that her stock broker’s bad investment advice lost money she planned to give to her son after she passed away.  I asked her how old her son was.  Immediately, the woman began tearing up.  She said, “I can’t believe you asked me that!  How dare you!  You know my son died!”  She spent the next five minutes sobbing uncontrollably and glaring at me.  All I could do was wait her out while offering her tissue and saying, “Ma’am, I’m so sorry for your loss.  Truly, I had no idea.”  But there was no way I was going to be able to establish a rapport with Wanda and attain her trust after getting off to that bad start.

It is not at all uncommon for a witness—usually a complainant—to tear up or even sob during an interview.  Such interviews must proceed more slowly than planned.  I usually must take a moment to reschedule the next interview I had planned.  I must be patient, and gentle, as I probe for information.  I must exhibit compassion without at the same time letting my objectivity be impaired.  Some witnesses use “artificial tears” as a calculated way to enhance the believability of their story.

Attorney Gene R. Thornton, AWI-CH is highly experienced in conducting workplace investigations of all types and is an Association of Workplace Investigators Certificate Holder (AWI-CH).  He has over 30 years of experience representing both employers and employees in workplace disputes.  Contact Mr. Thornton at Thornton Workplace Investigations, LLC for a free initial consultation for your next workplace investigation situation.

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