International Bar Association – January 2023
By Melina Llodrá and Aldana Barrichi
Introduction
Interviews are a key element of internal investigations. When an alleged violation arises, the organisation may need to launch an investigation into the potential wrongdoing which, depending on the nature of the potential violation, may include conducting interviews with relevant parties.
Interviews can provide vital background information, help establish the facts and the chronology of the relevant events, identify the extent of the potential wrongdoing, consider the organisation’s reporting obligations and assess the individuals’ credibility.
Dos and Don’ts
Plan interviews in advance
The difference between a well-planned interview and a detrimental improvised one is crucial. Take sufficient time to review and assemble all available case-related information. The interviewer must plan carefully and ask the right questions (and be able to rephrase them if necessary) so that the interview generates useful information for the investigation.
The interviewer needs to know the facts and evidence relevant to the complaint to be able to spot contradictions in interviewee testimonies. In order to be armed with such information there is no substitute for thorough and diligent interview preparation.
Prepare an outline of the interview in advance. Making a list of interview topics is more useful than having a list of questions. A script generally restricts your thinking and flexibility towards the interview.
Generally, questions should be open-ended and non-leading in order to allow interviewees to elaborate their version of events without being affected by the interviewer’s point of view. Interviewers must keep their opinions to themselves. Using phrases such as ‘explain for me’, ‘tell me about’ or ‘describe for me’ are good ways of breaking the ice when starting the conversation. Encourage the interviewee to do most of the talking. Using questioning phrases such as ‘then what happened’ and ‘what did you do next’ are also helpful. Use specific questions when you need specific answers; closed questions starting with who, what, where, when, why and how are useful to clarify information and to get the important details. A well explained introduction clarifying why the interview is taking place is good launch to the interview. In Latin America this is a must as it will help to break the ice with the interviewee, creating a better atmosphere.
Consider who and when the person should be interviewed
It is important to determine which individuals should be interviewed and in which order. Who should be interviewed? To start with, the whistleblower – if there is one. The suspected wrongdoers and company employees who were involved in the facts under investigation should also be interviewed. It is important to include employees who should have been involved according to their position.
If there is one, it might be convenient to interview the whistleblower at the beginning of the process. The person reporting the event is the initial source of information but it is essential not to just accept the reporting person’s answers. Their reasons for submitting a report need to be explored since reports are not always the result of wanting to do ‘what’s right’.
Generally, it is convenient to interview the suspected wrongdoers last in order to have gathered most of the information and reduce the possibility of having to carry out reinterviews. It is key to seek information from the suspect which may eventually trigger admission of key facts. In some cases, the answer might already be known but the question might be used to test honesty.
The remaining interviews should be conducted based on the level of risk that the interviewee poses to the organisation, starting with those who present the least amount of risk, which usually corresponds with seniority levels.
Assure confidentiality to interviewee
Inform the interviewee that all efforts will be made in order to preserve their privacy explaining that the information provided during the interview will be shared only if absolutely necessary. It is also key to explain to the interviewee that the organisation has a duty to protect them from any form of retaliation.
Professional investigators
Ideally, the organisation should conduct most of the interviews with experienced lawyers or investigation professionals. There are plenty of reasons for experienced lawyers to conduct interviews. First, it involves skills that are not normally used in daily work. Also, it is important to understand the interviewee’s demeanour and behaviour, such as signs of deception and contradictions in its testimony that will allow them to challenge the interviewee or test their credibility.
Interview one person at a time
Never allow joint interviews – they can be a recipe for disaster. Whether intentionally or unintentionally, witnesses tend to coordinate their responses when interviewed together, which is why interviewing one witness at a time is the way to obtain more objective information.
Speak to the interviewees in their own language
For the interview to provide the best results possible, it is key to avoid language gaps. Therefore, it is important to have a native speaker as part of the interviewer’s team. This will allow a smooth communication with the interviewee and reduce possible misunderstandings arising from local vernacular. Take into consideration that Spanish and Portuguese are the most spoken languages in Latin America, and within those two languages for a given word there are many different meanings used differently in each country.
Use documented evidence to verify the information
Having relevant documents to hand proves helpful when conducting interviews. Firstly, documents will help refresh the interviewees’ memory and verify the credibility and accuracy of their answers. Secondly, interviewees are more likely to provide focused and relevant answers if they are shown a document, such as emails, charts, memos or invoices.
Keep a record of the interview
A common concern among interviewers is whether an interview can be recorded. Carefully consider whether to record the interviews, what to record and how to record them. On one hand, while recording gives accuracy it might also create a more tense atmosphere. On the other, it helps to pick up on the details later and focuses on the core subject during the interview.
Recording interviews has cultural aspects too. While in some countries no particular offence would be taken, in others it might cause great offence affecting the results of the interview itself. But, in general, provided the recording is disclosed at the beginning of the interview and the correct procedures are followed, interviews can typically be recorded. In Latin America, after the Covid-19 pandemic recording is much more generally accepted.
Challenges in Latin America
When conducting interviews in the context of internal investigations in Latin America, it is essential to understand the local flavour, including the local culture, language and framework. Behaviour and cultural standards in Latin America may differ even if the language is the same; the language gap (including body language) may become a challenge.
It is essential to involve local professionals to mitigate these challenges and bypass the cultural gap, including considering those interviews techniques that are more readily acceptable in the local jurisdiction (eg, face-to-face or virtual interviews) and will affect the pace of the investigation.
Conclusion
Even though conducting interviews in the context of internal investigations is a complicated matter per se, there are several steps to consider in order to improve the efficiency and results of the process.
It is key to be ready for the interviews (including acknowledging the local flavour), study your facts, get to know the interviewees and be open to listening to what they have to say.
Communication in the context of the investigation can be seriously affected by cultural differences if these are not considered in advance. When conducting interviews in Latin America it is essential to use the local language and, ideally, involve a native speaker since the same language may be used differently within Latin American countries. This aspect will be essential in minimising cultural differences and allowing the interview to provide the necessary information to obtain the best outcome in the investigation.