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Internal Investigations: How to Deal with Difficult Witnesses

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Internal Investigations: How to Deal with Difficult Witnesses

Thorough employment investigations of employee allegations of sexual, gender, age, racial and religious discrimination must balance the adverse interests of an employee’s complaint and the employer’s need to minimize interruptions to business operations. To further complicate these competing interests, internal investigations can involve difficult witnesses. This program will provide corporate counsel, internal investigation teams, and human resource professionals with tactics for identifying difficult witnesses and real-time adjustments in investigation strategies that disarm difficult witnesses while maintaining professionalism. Professional service providers such as physicians and accountants will also increase their understanding of internal investigations conducted in small business settings.


Judie Saunders
Griesing Law, LLC


Judie Saunders - Hello, and welcome to Internal Investigations, How to Deal with Difficult Witnesses.

My name is Judie Saunders, I'm a member at Griesing Laws' employment law practice. I have experienced as a civil and criminal litigator, I've also done administrative hearings and have tried cases to verdict. I'm an arbitrator with the American Association of Arbitrators and part of my practice is to defend public and private companies against lawsuits that allege discrimination, harassment, and retaliation. There are times when employers will face high stakes, sensitive, confidential employment matters. These matters may require an internal investigation and that's what I also do as part of my practice. I participate in lead internal investing and make recommendations on remedial strategies. Companies will need outside organizations who are not their regular council to manage internal investigations, to provide objectivity and discretion. These investigations need to be conducted discretely, unbiased, and need to directly address allegations of sexual harassment and this could involve both in a government workplace, a nonprofit or a private entity.

Today we're going to cover how to identify difficult witness types. We'll also discuss minimizing the impact a difficult witness will have on your investigation. Part of an internal investigation is producing either an oral or written report and in some cases both. So we will discuss how to protect that report. We'll then move on to ways that we can work collaboratively when you are confronted with a difficult witness type. And what every investigator needs to know before you even begin your interviews and investigation, and that's emotional IQ. Enjoying your next difficult witness interview, compassion will be the key to disarming a difficult witness. And I say, enjoying your difficult witness, of course in just no one looks forward to or wants their investigation to be filled with difficult witnesses, but inevitably it will happen and when you have that, keep in mind these words from Lori Perez, "Feel compassion toward a dangerous person" and in the case of our discussion, a difficult witness "Because that will not lead you to submit to them "or put yourself at risk to condoning their actions, "what it simply does is relieve your own anxiety "which immediately makes you stronger and more resilient."

Identifying difficult witness types. The uncooperative witness. Characteristics that you'll find with an uncooperative witness may include, explicitly refusing to schedule or show up for an interview, attending the interview, and then refusing to answer questions. You have to determine if you are confronted with this type of uncooperative witness, whether taking their interview is essential at a critical part of your investigation. What do I mean by that? Maybe the witness is simply there to explain a process or system that's part of the investigation. For example, if you are investigating corruption or fraud, harassment, what's inside of a company, is this person just there to talk about how a department works, who are the key players? And if they're not essential to the investigation perhaps you can get what they're going to tell you from someone else who will be more amenable and compliant with you and part of the investigation. Of course, if they are essential, maybe they're an eye or air witness, you'll have to overcome their obstacles by. And we'll talk about this more later. Getting to the root cause of their nature and why they're being uncooperative.

The evasive witness. The evasive witness as in many of these witness types will use ego to try to avoid both open-ended and direct conversations. Eckhart Tolle provides some a great reminder about individuals including yourself as the investigator who lead with the ego. When he states, "The ego is clever, not wise." Remember that when you encounter the evasive witness who was characterized by some of these responses they will attempt to respond to a question by first and foremost you'll notice having a defensive posture and that posture will be presented maybe physically and or verbally. You'll know that this witness will respond to your questions with such things as, "Well, have you ever been "in my position or I don't know, I wasn't there." And my personal favorite, "That's not my job." You may also find that the evasive witness will use their titles, their position or perceived authority to intimidate you and to avoid answering questions.

If you're a newer investigator, be cautious of this difficult witness type. They will try to play on and intimidate you to not answer questions. I can recall as a newer attorney having to interview a subject matter expert. I had read the individual's background, some of their writings, and felt confident in what I needed to get from this witness. They were not happy that they had to be there. They found it beneath them and a waste of their time. To avoid questioning and being extremely difficult and evasive this witness took every opportunity to use specific terms of art, the most obscure terminologies in answering the questions. And what I found is that I was growing frustrated and the witness could tell that. I was able to gather and step back and employ this tactic that I gave to you, allow the witness to show off, give them time to showcase their deep knowledge and experience by asking an open-ended question that only someone in their position would know. What you may find is that they will then run off and wax poetically about all they know in that subject matter. As they're talking, it is very likely and I found this happened over and over again that the witness will provide different bits and pieces of information that you can glean from to then use in your questioning to achieve your goals and put the interview back on track.

Contradictory witnesses. These witnesses will be characterized by such things as, making statements that go against prior, oral or written accounts. Statements that go against what you've learned from other witnesses. You'll find that the contradictory witness will provide few details and instead give you extraneous information. They're usually very friendly and willing to speak to you. They may even offer alternative theories such as identifying who could be possible targets or the real wrongdoers that you should be investigating. When you think about managing a witness that may be contradictory, let the witness similarly to the evasive witness, let them speak freely. When you're trying to clarify a contradiction that you identified in speaking to a contradictory witness, be very careful not to jump to any conclusions and assume that the witness is intentionally lying. Instead, it's important to give the benefit of the doubt. You can do that by saying such things as, I wanna circle back to a point you made earlier or can we clarify something? Using the we in that sentence signals to the witness that you are not against them instead, you're working collaboratively to try to figure out a point that now may be confusing. If the contradictions continue, if the witness fails to clarify a point and you've asked the question with clarity, simply not using a compound question, a question for example, that has too many ands, buts, ors in them, just direct questions, let the contradiction stand if they've failed to explain it. Note the contradiction and move on to your next topic. Or what if during the course of your investigation you're now confronted with the actual target.

The reason that your client has retained you, the potential wrongdoer, do not automatically assume that this person is going to be difficult. In fact, they may be nervous, unsettled. Consider with this witness and with others providing what is commonly known as Upjohn Warnings and these warnings sometimes are referred to civil Miranda warnings. They are based on the United States Supreme Court case of Upjohn V United States. And I'll provide the site to that in the notes. After providing your introduction to the target or the potential wrongdoer witness and this also is applicable to the other witnesses, your introduction, your name, your role, and the purpose of the interview. In providing Upjohn Warnings rather, you'll also discuss that you are there retained and representing the company, the government, the nonprofit, whatever the case may be. You'll let them know that if they want an attorney they must privately retain that attorney. You'll be sure to clarify that you do not represent the witness. You'll go on to discuss that the interview that you're having is confidential and protected by the attorney-client privilege. The privilege belongs to the client or for example, the company.

You'll explain that and that the company can waive that privilege. Upjohn Warnings also include explaining to the witness that anything that they should be very mindful rather to keep the interview confidential which may work to their benefit because should they be interviewed by, for example, later an opposing party or a government entity, if they have not kept the interview confidential, then that may harm their interest, but it's essential that you clarify and let the party know or the witness know that you do not represent them. What are some of the reasons that you may encounter difficult witness types be it an evasive witness, uncooperative or a witness that's contradicting themselves? It's because within our institutions be they private or public there are instances where companies must confront. And when I say companies, I'm using that very liberally because I also include private and public entities. Where these entities they have to deal with such allegations as discrimination in its various forms be it gender, race, or ability and also the different iterations that come outta discriminations or discriminatory claims, bullying, harassment. By way of an example of how pervasive the problems that entities face.

Bullying - in a 2021 survey conducted by the Workplace Bullying Institute found that the problem of bullying was this widespread when they state that 30% of American workers have experienced bullying in their employment. 19% have witnessed it and 66% were aware of it. Over the course of your career as an internal investigator, you will encounter and will be called to offer recommendations to either a public or private company of how to change culture that may seem to hide or support such instances as bullying, retaliation, discrimination or harassment. Your clients will ask you to assist them because they know and part of your recommendations will be to advise that if they do not deal with these types of behaviors they will be exposed to claims of harassment, retaliation, intentional infliction of emotional distress, and even assault in the workplace. Investigations will have to look into these claims and during the course of that, that is when you will encounter your difficult witness type. Moving on to the witness type that will appear with counsel. We just discussed a witness that could be your target or the potential wrongdoer. Well, what if that witness shows up because we don't work or live in a vacuum? Maybe the witness is very well aware that the investigation has started. If they're in management, maybe they've caught wind of this and they know to appear to their interview with an attorney.

Let's discuss witnesses that appear with counsel. Witnesses appearing with counsel does not change nature of the interview. Interviews are not depositions, they're different, a totally different animal or beast so to speak. Ways to handle witnesses appearing with their attorney are to provide the rules to the attorney prior to the interview. When the witness appears with their counsel, after your introduction and Upjohn Warnings also set out again, the ground rules that you've previously told the attorney. Remind the attorney that they shouldn't object or direct the witness not to respond to the questions, that is the witness' obligation to cooperate with the investigation. Make every effort as you do with any witness time, excuse me, any witness type to make the attorney and the witness comfortable. If necessary, share the documents that you will use during the interview prior to meeting with counsel and the witness. And be sure to establish a protocol if the witness would like to speak with their attorney or would like a break, set those things up. That is the best way to manage that witness scenario where you have the witness coming to the interview with an attorney. If you have a witness that no longer works for the entity private or public, maybe the witness has been terminated or resigned, retired and they're called in as part of the investigation. Consider these factors in interviewing this witness type. Research, conduct, and prepare to ask the question of yourself first if the former employee may seek to harm the company.

Consider whether this witness may leak information learned during the interview. By listening to your questions, by asking questions, this witness may have the objective of learning information that could then be used to share and to harm your client. Consider that and decide whether interviewing this former employee is essential or whether you can get this information from another party or another individual. Only share documents with this witness that they had access to during their employment. So you're not providing this witness with any new or confidential or information that the client does not want disclosed. Limit the purpose of this interview with a former employee, limit your topics and your questionings only to the scope of discussing the former employees roles and duties. The whistleblower witness. During the course of investigations you may encounter the witness who brought to the attention of your employer, maybe instances of waste, fraud, discrimination and that person blew the whistle. You may encounter these characteristics exhibited by this witness type. They may be nervous, guarded, which could be seen by you as being difficult, but the witness could be fearing retaliation, job loss or demotion. They may demand an assurance that they remain anonymous. It's important when managing this witness type that you are fully advised and aware of your client's policy on anonymity during interviews.

Whistleblowers, you have to understand and be fully prepared for may be protected by company policy, federal, or state law. Use that to guide and frame your questions. Do not ask questions that will lead this witness to believe that they're the target. Give thought to how you frame your questions and what your goals are with this witness. Manage the fears and the difficulty with this witness type by being fully versed in what policies and laws protect whistleblowers. It is important to understand that being a whistleblower carries with it responsibilities. Maybe the witness blower could appear to be difficult, but what's really happening is that they are making reports and they've previously have attempted to discuss instances of fraud or wrong doing and they were brushed off or dismissed and now they believe that you working for the company, working for the nonprofit or working for the governmental department are aligned and are not there truly get an accounting of what they've been trying to bring to the attention of management or persons in authority. Manage this doubt that is expressed either verbally or nonverbally by a witness blower by in your introduction so early and then often repeating that your goal is to conduct an impartial unbiased investigation. Remember that whistleblowers may fear participating in investigations because they think that it will lead them to being involved in litigation and that of course would mean that they cannot be anonymous.

So in particular if you have a whistleblower who is asking that they remain anonymous, you are not guaranteeing that because if you begin by providing guarantees to any witness type, then you've already broken a promise because you cannot make guarantees. You can provide information that you have decided that was agreed upon to be disclosed, but you can't necessarily persuade or dissolve every doubt on any witness type, but especially when dealing with difficult witness, excuse me, especially when dealing with whistleblowers who may have very deep seated fears that they will be pulled into a longer, more drawn out adversarial process such as litigation or hearings or arbitration and they fear that their attempts just to bring something to the attention of authority figures will cause them professional or personal harm.

You may during the course of your investigation encounter the witness asserting fifth amendment rights and this can be a witness that you've identified maybe the target or during the course of speaking to any witness type, be it an evasive witness, be it a witness that's contradicting themselves, that witness may assert their fifth amendment right under the United States constitution which states in summary, the fifth amendment, "Nor shall a person be compelled in any criminal case "to be a witness against himself nor be deprived of life, "liberty or property without due process of law. "Nor shall private property be taken for public use "without just compensation."

In an internal investigation this is what's key for a witness asserting fifth amendment rights under the US constitution. That right is a right and a privilege against rather a right against self discrimination that does not apply. In an internal corporate investigation, there is not a state actor conducting the interview. If you are an investigator that has been retained by a business that is not aligned or a governmental agency or a state actor, they do not have the ability to assert fifth amendment rights, not to say that they won't, but you can, you will explain and you'll manage this witness by saying, this is a private investigation. You will remind the witness of their obligations to cooperate and you can provide or direct this witness to speak with their attorney again, using the Upjohn Warnings that we spoke of previously and have that attorney explain and understand the fifth amendment and when it's applicable and under what circumstances.

A difficult witness may feel to you that they are absolutely acting as an obstacle to a smooth investigation. You may think, is this witness now going to leave the room and taint the minds or potential witnesses who I have to speak to? Could they ruin the objectives going out into the workplace and speaking with their colleagues? How to minimize the impact that difficult witnesses will have on your investigation. Here are some tools that you can consider when you know or you have good reason to believe that you're going to encounter a difficult witness. You may wanna consider conducting the interview by video that may contain a difficult witness and provide more control. Be very clear on reminding the witness of their duty to keep interviews confidential. This will also contain that witness from exiting the room, speaking to colleagues or speaking to other witnesses. Be plain, excuse me, plan how to conduct your interviews efficiently. Begin the investigation as soon as you've had an opportunity to review any documents, plan out your strategy, how and at what times, your interview witnesses and avoid stalling unnecessary delay. Interview and share your investigations with only essential team members. So you're not going to be talking about your investigation and what is going on with individuals outside of those very close points of contact and that could be just one person, an in-house counselor or whomever you've been retained with, but be very, very mindful that the way to contain a difficult witness is to remind them that these interviews are confidential, consider conducting it by video instead of going in-person and this is becoming the norm actually at the time now that we have begun to work more and more remotely, it's normalized. So consider that. Let's move on to protecting the report. Protecting the report, you should do that with a lens of protecting before, during, and after the interview.

Reports are what our clients are asking for. They may be asking for only an oral or both an oral and a written report containing recommendations. You protect the report as we discussed before by providing those civil Miranda or Upjohn Warnings that will show that you were mindful to inform witnesses that they, should they have questions they must speak with an attorney, that you are not their attorney and that you represent the public or private company Emphasize that the investigation is being performed in order to secure legal advice. Underscore the confidentiality of the investigation.

Also and I can't stress this point enough that your Upjohn Warnings will be very important part of protecting a written report. And it's worth noting again that the way that we issue these warnings as investigators includes identifying yourself, who is the client, the purpose or the matter of the investigation. By understanding the organization's expectations specifically that the witness collaborate and tell the truth, explaining the obligation of confidentiality that everything the employee tells the lawyer is confidential outside of the organization, but not within the organization. The organization has the right to waive the privilege, the attorney client privilege and decide what to disclose to outsiders.

Also explaining as we discussed before that the witness should retain if they would like, their own attorney and that you do not represent or provide legal advice to the witness. We discussed briefly that one way to contain a difficult witness. So you've done your preparation. You believe that this person may leave an interview, may pollute the potential witnesses that you have coming up next and so you've thought about, maybe I should use technology and use a video to conduct this interview. Here are some things that you should keep in mind if you're deciding to do a video interview. Some of the advantages, it could save your client money on travel, more convenient for the witness. So if you have that witness type that seems to be overly avoiding scheduling or appearing, a video would alleviate some of that scheduling conflicts. A witness tend to be and I've found this now that we do use video more often, witnesses may be less guarded on video, they're in familiar settings, maybe they're in their home. The interviews are separate and private from coworkers who don't see the witness or the employee being interviewed at the workplace. Those are all advantages. However, also consider these disadvantages or factors when you're thinking about interviewing a witness by video. The witness may attempt to record the video privately or you could lose the protection of the work and items, documents may become discoverable.

Consider that. A witness who has attempted to covertly record it may then publicly disclose the recording and that could cause your clients harm. Also consider whether there's an undisclosed third party, for example, a family friend or partner present in the room which would result in the loss of the attorney client privilege and like we stated, electronically stored documents that are shown. A third party could disclose those documents just as they might disclose information which would also cause harm. And my favorite, technical issues, IT problems. Those all have to be contemplated, provided, and dealt with. One of the ways to manage technical problems is to prior to every video interview having two or three alternatives for connectivity. So for example, if you're planning on conducting it or sending a link to conduct a video interview also provide for different devices, maybe ask the witness to have prepared if there's connectivity issues have a smartphone or you yourself the interviewer you have your smartphone and a tablet in addition to your laptop to avoid any technology problems and setting that out, that protocol out before. You also have to consider that videos, they remove some of the ability to build a rapport versus being in-person and able to fluently read a witness' body language that can be managed or replaced by some of the things that we'll talk about soon by having an emotional IQ. And another issue that's presented by video is it may be more difficult to evaluate credibility on video, but because we're going to talk about emotional IQ that's gonna be one way that we can manage the barrier to evaluating credibility and being able... Making it more difficult to establish a rapport on video. You also have to consider whether the platform that you're using is secure or not secure because that also could lead to leaking of company information.

So a final point is establishing clearly a protocol and informing the witness early and often that they are not to share or confer with their attorney by using another piece of technology for example, texting their attorney, emailing or putting the device on mute and then calling or having maybe their attorney listen to portions on another device. Those are all factors that you have to plan for and consider if you're going to conduct a video interview. Video interviews can be safe however if you are interviewing a current employee so there's always the threat that if the current employee is not following the established protocol that you've set out, that there's a threat of termination. There's also the witnesses who are merely testifying as to a system or process, they're not the targets. And that type of witness may actually be a good candidate for a video interview.

To manage your videos, you'll set out and have prepared a confidentiality agreement that will include such clear items, identifying to the witness that documents are only used for the stated purpose, that they will be destroyed or returned, all hard copies will be returned and you'll want written confirmation that anything, any document, any document shared that they will be deleted. You're gonna provide password protected documents that can't be forwarded. That's some ways to manage video interviews. I stated before that you can enjoy your next difficult witness interview that you encounter and part of enjoying anything is when you're able to connect, from connection grows collaboration. And if we're able to collaborate, we're able to disarm even a difficult witness type.

So how do we work collaboratively to disarm a difficult witness? Establish a flow, use your introduction to explain your protocol and the rules of what's coming next, information is key to collaboration. When an individual knows what's going on there's less anxiety. There's less frustration. Think for example, when you are stuck in traffic and you see for miles ahead red lights staring back at you, you think of your day being derailed, late for your appointments and your entire goals and objectives being thrown off. Their situation is managed by instances where you see you're on the highway, there might be a marque explaining, accident ahead or information such as delays for the next 11 minutes. You find that when you see those things that information relieves frustration and stress and that's part of how you can work collaboratively with a difficult witness by providing information and explaining that they will be allowed breaks, opportunities to review documents and what will happen in the event that you encounter some IT or technological issues.

You should be prepared to briefly open and state as I stated before, the purpose of the interview. Let the witness know that you welcome their questions and that you know and understand the witness' personal and professional background, but that you like them to take an opportunity to explain more to you, be interested in the witness not only for what they offer to the investigation, but generally and do that sincerely. What you're doing when you're working collaboratively is that you are in essence using emotional intelligence or your IQ to promote that connection. And that's not far off from what every investigation must do because you're looking for truth in your investigation.

You're using your emotional intelligence which is the way that we ascertain and arrive at truth. That in turn will allow for an easier flow of individuals, excuse me, an easier flow with an individual witness and show that you're truly interest in getting to the unbiased truth. Investigators, before you start any questioning it's necessary that you have a level of emotional intelligence. These may be referred to as by some, soft skills. I don't like that word in particular. I think that it takes a sincere effort, practice, and familiarizing yourself with how to sincerely connect and it's going to be especially important when you encounter someone who's being difficult. If you don't have that ability to call upon emotional intelligence, what you will find is that you as an investigator in your role will mirror the same behaviors that you are trying to overcome.

For example, if you have an evasive witness, someone who is being uncooperative, you may find that you yourself will then become uncooperative. I was once conducting an investigation and was confronted by a witness who was highly confrontational. I had surmised and had learned that this individual wasn't very fond of people in my age group, in my gender, and from my racial background, I entered that interview defensively. Over the course of questions there were a number of different junctures where the remarks to my questions were rude, they were offensive. And at that point I hadn't used or been employing emotional intelligence with any consistency during investigations. And what I found is that I was mirroring the hostility that was being given to me. It made it more difficult and I couldn't achieve the goals of that witness interview.

According to the group, Very Well Mind, psychologists refer to emotional intelligence as very important to your overall success in life. Emotional intelligence is the ability to recognize, observe, and not react to your own strong emotions as I was stating before when I encountered that difficult witness. Instead of entering the room in your own defensive posture or meeting anger with anger, Very Well Mind, which is a group, they say anger and frustration is important, but the ability to perceive loosely interpret and have compassion to strong emotions in a witness and this is partially my adaptation of what Very Well Mind advises, that having compassion to the strong emotions in a witness is essential to encountering these types of interviewees.

Difficult witness types are not there to ruin you, they are not setting out to ruin your investigation or your day. These witnesses are wrapped up in their own set of preconceived notions, bias, or even their own agenda. Remove that tension within yourself and the barriers by asking these questions when confronted with a difficult witness, what does this witness fear? Are they fearing termination, retaliation, as we talked about before with the whistleblower, isolation, if they are being interviewed and being perceived by their coworkers as pointing the finger or by working with you during an interview try to identify whether the witness is fearing personal or professional laws. This goes back to having that compassion or empathy that we need to overcome, work collaboratively with these witness types. Here are some steps that you can begin to increase your emotional intelligence.

Step one, practice, practice, practice. If your work requires interview skills, client contact, customer service and in this case, in our case, internal investigation, preparing for encounters with difficult witness that happens in the months, weeks, and days before the actual witness interview. Practice having empathy, practice asking questions to ascertain what is the true source of this individual's perceived difficultness. Do not take this personal. And that leads to step two, practice curiosity, make it a part of your daily habit and that will lead to you becoming more aware of your own emotions. Ways that you can practice curiosity is walking, spending time of alone, being still, and meditation, which really means just having some internal time to give yourself space. You're going to do meditation or any of these things perfectly, but that's why we return back to step one and we practice. Increasing your emotional intelligence and becoming a more effective investigator when dealing with difficult witness takes practice.

So we're practicing, we're using curiosity in our daily habits and then step three, we're incorporating this by not reacting instead, we're responding to the big emotions in ourselves and in our difficult witness types or others. There's a difference between reacting. When I encountered the witness who I had been told was not fond, didn't think kindly or didn't believe that they should be questioned by someone of my background, I was defensive, I entered with a big emotion and in turn throughout the interview I reacted instead of responding, instead of going to the root or using some other form of emotional intelligence. The point of that interview was not to get that person to like me or to see the value of the interview. I had specific goals and that's what you have as interviewers, investigators. You have specific goals and if you react you're not going to achieve them, but instead, by being curious, by offering compassion, questioning, and asking and responding, you will be able to work more collaboratively with your difficult witness type.

The fourth step in using emotional intelligence is accepting that an interview will not always go according to plan and you know that if you've done one interview or you've done 1000 of them, they rarely go according to any written plan. Maintain a sense of flexibility. Accepting that within rules and regulations you have to be flexible and you have to plan to have alternatives to achieve your goals. When managing difficult witness types, witnesses... Rather when managing difficult witness types investigators must remain professional, provide clear information and be focused on your objectives. Every investigation should begin with an introduction, including an explanation of the investigator's role, purpose of the investigation and full disclosure that you do not represent or provide advice or counsel to the witness. While these practices are important for every witness type, managing difficult witnesses these practices are essential and should be reiterated to the witness throughout the interview.

So for example, an uncooperative witness who was combative during questioning will require that you pause to remind the witness that the purpose is not to frustrate, but to seek information. When the investigation resumes, interaction with the witness, determine whether you should switch the format of your question and what's best suited to achieve your goals. Open-ended questions that invite free flowing dialogue will not be effective if you have an uncooperative witness set on only providing yes or no answers. If that's the case, you should tailor your questions to be direct and specific. Managing difficult witness types is important to consider. It's important to consider the source of the witness' behavior. Many times a witness will begin the interaction as we discussed before in a defensive posture, viewing the investigator as an opposition to the witness' professional wellbeing. To manage this difficult stance in your witness, you can return to your introductory rules that was stated at the beginning.

For example, remind the witness that your role is not to terminate their employment or punish them, but to gather information. An evasive witness may believe the information they provide will implicate them, their coworkers that they consider friends. The average full-time American worker spends over 42 hours at work each week. You have to keep that in mind when you approach difficult witness types and have that measure of empathy, that sympathy that we discussed, understand that difficult witness behavior is not directed usually toward you, but instead, the witness is acting on the tensions and fears caused by this investigation. These types of witnesses will feel that it's in their best interest to be clever when responding to questions. Remember, the ego is clever and not wise and your investigation based on truth is trying to be wise. An evasive witness that is highly credentialed in their profession will attempt to flaunt or exhibit their expertise when you present them with a question, but allow this expert and that's an expert in quotes, a few opportunities to exhibit their knowledge by asking open-ended questions talking about their specialty, allow the witness to speak uninterrupted. And as a careful listener, you will be able to use portions of the witnesses longer response to fashion your questions that return the interview back to your objectives.


To manage witnesses that provide contradictory information, you should avoid assuming an accusatory tone instead use language such as, as I stated before, can you explain further or it's important that we clarify that point. Remember, as I summarize this point about a contradictory witness, a difficult witness type that using that point or that pronoun, we signals that you are willing to work collaboratively to achieve the goals of the investigation. There does not have to be gotcha moments during an investigation with any witness type. You can determine whether a witness is lying versus mistaking by presenting clear questions. Use that by giving sufficient context when you frame your question, anchoring the questions on dates, times or persons present and other information that will allow the witness to refresh their recollection. A witness that repeatedly provides contradictory responses when you've reframed or shortened and clarified your question may then be doing so intentionally and in that case you should let the answer remain and move on.

Also, as we conclude this it's important for managing a witness that is the target of a wrongdoer and the target of your investigation is done and we manage this witness type by providing in our introduction to the witness stating clearly the purpose and providing with civil Miranda warnings or Upjohn Warnings. Managing a witness that has blown the whistle on corruption ways, fraud, harassment or discrimination requires that you put the whistleblower at ease and show that you understand the seriousness of the information being disclosed. A whistleblower may seem to be evasive when answering questions, but because you're using emotional intelligence, you know that in fact they really may be fearing retaliation. Whistleblowers that appear to be combative maybe in essence upset that prior complaints were ignored. They may also question your sincerity and if that is what you are presented with, explain to the witness that your purpose is unbiased and that you are here to conduct an objective interview. Take the time to fully explain why you are conducting the investigation, highlight any parts of your background that are not confidential, that will express to the witness, to any witness type that you are set to conduct, and achieve an unbiased impartial investigation.

Thank you for taking the time to listen and I hope that you enjoyed our discussion on difficult witness types. If you have any comments, I can be reached at Judie Saunders, Griesing Law and that's [email protected] Thank you.

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