Investigation beyond checking the boxes

Commentary

By STEPHEN B. WILLIAMSON, Special to Lawyers Weekly

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It’s the eve of trial and you’ve just determined that a key witness lied to you. You built your defense assuming the witness was truthful. You would have settled the case months (and thousands of dollars) ago had you known then what you know now.

Sound familiar?

This “house of cards” experience can occur in any kind of case. Because so much employment litigation arises out of employee conduct, we constantly investigate behavior. Whether the claim alleges discrimination, harassment, embezzlement, unpaid overtime or another workplace-related claim, the core issue frequently centers on factual testimony about behavior.

Lawyers know that the first step in any employment case is to investigate. However, investigations sometimes become “check the box” exercises. We create checklists to ensure that a mission is accomplished. But it is important to remember the checklist has no independent value – it is a means to an objective.

Unfortunately, people soon forget that the objective is the mission, and they instead focus on checking the boxes. When you grade performance on a mechanical basis, you encourage that result.

A salesman, compensated only for actual sales, knows that everything he does to get a sale is not worth anything if the sale doesn’t close. Conversely, a salesman, paid for activity (cold calls, presentations, etc.) learns that he will be paid regardless of whether the sale actually closes.

Attaching importance to the procedure itself creates independent value. Suddenly, we are rewarding people for simply showing up. Once we reward someone for checking the box, the motivation isn’t to accomplish the mission – it’s to go through the motions.

It’s easy to see this trait in others. However, lawyers sometimes don’t notice when they fall into this trap. Attorneys who focus on billable hours quickly realize that inefficiency is rewarded, and we learn to happily check the box.

Another form of this occurs when lawyers fail to truly interview their witnesses.

Too often we confuse interviewing with recording. When interviewing, if all you do is write down what you hear, you are simply recording.

An interview must be probing. Note that this is not like a deposition where we use techniques to cast doubt on what the deponent is saying; the mission is to ascertain the truth.

If your investigation consists of a series of interviews wherein you have simply recorded what the witnesses say, you have not truly investigated, and you are building your case on a house of cards.

When the truth comes out – and it almost always does – you will be left telling the client how surprised you are and how there was just “no way to see that coming.”

It goes even further.

Have you ever heard a lawyer say, “I knew he was lying to me”? When you interview someone, you must ascertain whether the witness is being truthful. However, while determining truthfulness is useful, it does not tell you the truth.

Recall that the mission is to ascertain the truth. A skilled interviewer is someone who cannot only determine when he is being lied to, he can also get the witness to reveal the truth.

This skill is not always taught in law school. However, it is a skill that lawyers can borrow from other disciplines such as psychologists, police detectives and others who have developed questioning techniques to accomplish this mission.

When investigating an employment case we can and should interview all involved employees and supervisors – anyone upon whose testimony your case is to be built. We do not want to know what we think they will say – we want the truth.

This does not just apply to defense counsel. Any lawyer working on a contingency basis knows well the perils of not knowing the truth.

There are many reasons for untrue information. Sometimes a witness is intentionally lying, and other times, he or she is mistaken.

For a lawyer, the result is the same. Whether the untruth results from self-preservation, inaccurate recollection or simply omitting “unimportant” details, the foundation of the case is cracked.

Last minute revelations lead to 11th-hour “doom and gloom” speeches and alienated clients. Such situations force in-house counsel to explain to their business partners how projections have changed, the reforecast is bleak, the case must be settled and, as an added bonus, the trial starts tomorrow so they have to settle immediately.

That scenario can happen in circumstances where outside counsel is truly blindsided. But, if you recognize that scenario, ask yourself whether you’ve taken steps to prevent it.

This applies to both outside and in-house counsel.

In-house counsel facing increased employment litigation, in a company with a never-ending supply of “bad apples,” where cases are repeatedly settled at the last minute because of events that “just couldn’t have been anticipated,” may want to check the mirror.

In-house counsel must insist that going through the motions isn’t enough. All attorneys involved must understand that the mission is to get to the truth, and they need to stop rewarding time and money spent building a defense on a weak foundation.

While sometimes it may be easier to tell in-house counsel that they have a lying employee when the client is a large corporation, the same rule holds true even if the client is a sole proprietorship.

This is simply a truth-to-power issue and, at least in the civil context, a lawyer who willingly agrees to represent a client that he knows is lying to him is a fool.

Editor’s note: Williamson is a partner in the Charlotte office of Katten Muchin Rosenman.