THE INVESTIGATON INTERVIEW:
If You Have Nothing To Say, Say Nothing
Many businesses and professionals will at some point encounter a visit with an investigator. The investigator may represent a government agency, an internal compliance department, or a third party. Many people mistakenly believe that if they attend the interview and answer the questions, everything will be fine.
This is not always so. It is not uncommon to hear from clients who were ambushed at or ill-prepared for an interview say: “But I thought the truth would set me free.” While many investigators are professional, there are some who can be overly aggressive, less than candid about the purpose of the interview, or who like to play “gotcha.” For example, a government regulatory agency investigator might innocently profess to have a few general questions. It might be about any number of topics, such as:
The usual and customary procedures at a hospital or clinic.
The suitability of insurance sales.
Prescription practices or laboratory tests for patients.
Internal communications in a financial compliance unit.
Real estate closing and mortgage documents.
Billing practices of a clinic.
Claims practices of an insurer.
Scope of practice issues involving any number of licensed professions.
Many clients, pleased with being recognized by the investigator, are more than happy to wax extensively about their profession, business, or industry. And talk themselves into a jam that can often be avoided through proper thoughtfulness and preparation.
Lori Swanson and Mike Hatch are principals in the law firm of Swanson Hatch, P.A., which regularly represents clients in investigations. Swanson and Hatch collectively served as Attorneys General of the State of Minnesota for 20 years, where they presided over thousands of investigations and lawsuits. Mike Hatch was also Commissioner of Commerce of the State of Minnesota for eight years, where he was the chief regulator of insurance, real estate, mortgage, and financial sectors and supervised thousands of enforcement actions, investigations, and inquiries. And Lori Swanson was previously Solicitor General of the State of Minnesota, where she was responsible for State investigations and litigation. Lori Swanson can be reached at lswanson@swansonhatch.com, or at 612-315-3037. Mike Hatch can be reached at mhatch@swansonhatch.com, or at 612-315-3037. The firm’s website is www.swansonhatch.com.
The following are general suggestions for investigative interviews. (Some of the suggestions may apply to interviews with government investigators but may not be suitable for meetings with your employer, for example.)
Guidelines for the Interview. Guidelines for the Interview. Find out as much as you can beforehand about the purpose of the interview and the topics to be covered or have your lawyer do so for you. Ask the investigator to explain the purpose of the interview and the ground to be covered in the interview. Ask if the topics will include dates, particular events, or particular individuals or organizations so you can be prepared. Ask if there are any documents that the investigator is looking for or looking at.
Prepare for the Interview. Prepare thoroughly for the interview. In advance of the interview, carefully review any documents which relate to the subject matter of the interview. Look for any hiccups or lapses that may have occurred in the particular transaction or subject area. Consider the reason why you are being interviewed. For example, does a person have a grudge about how a matter transpired or did you make a mistake? Review the laws and regulations that effect the transaction(s). Carefully read any regulatory guidance on the subject. Look at the dates of the transaction(s) and set out the dates in chronological order. If you are the target of a government investigation, one of the roles of your attorney is to help you prepare for the interview. Your attorney may conduct “mock” dress rehearsals with you in advance of the actual interview.
Common Interview Mistakes.
Get Legal Representation. If you believe you may be the target of an investigation, consider telling the investigator that you are not comfortable discussing with her the facts of a particular incident without your lawyer being present.
Pause the Interview. If the interview veers from what the investigator represented in the pre-brief, your attorney (if you are represented by counsel at the interview) may be able to limit the scope of the questions. That said, keep in mind that a licensee has a duty to cooperate with the licensee’s regulatory agency, and you do not want to do anything that will allow the regulatory agency to take action against you for non-cooperation.
Tape Recordings. Consider recording the conversation, if permissible*. It is not uncommon for remarks to get shaded or interpreted out of context, and an audio recording can help prevent this. Ask if the interviewer is going to tape record the conversation. (*The laws for making tape recordings vary from state to state. Your attorney can advise you on the propriety of making a recording, based in part upon where the parties to the interview are located.)
Watch for Silence. Every investigator knows that most people abhor a vacuum of silence. Most people will fill the vacuum by volunteering more information to please the investigator. If you are tempted to fill the silence, bite your tongue. And think of John Wayne. He once said: “Talk low. Talk slow. And don’t say too much.”
Do Not Volunteer Information. It is tempting for some people to try to impress the investigator with how much they know about a topic. If you are the target of an investigation, there is risk in volunteering information that is not responsive to the question asked.
Don’t Guess. The questions may relate to an incident long ago, that you barely recall, or where you never knew the facts. Some people nod in agreement when the investigator states as fact something that they only vaguely recall. Do not do this. Stick to the facts and don’t guess.
Be Accurate. Don’t say “no” if “not that I recall” is more accurate. Don’t say “yes” if “to the best of my recollection” is more accurate.
Ask for Clarity. Do not answer a question which may have multiple meanings. Do not answer a question which you do not understand. There is nothing wrong with asking the investigator to rephrase the question. Tell the investigator you don’t understand the question and ask for clarification.
Trick Questions. There are trick questions favored by some investigators. For example, if the investigator asks what you learned from the experience or what would have done differently, he may be looking for admissions to use against you.
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www.swansonhatch.com
431 South Seventh Street, Suite 2545
Minneapolis, MN 55415 612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
If You Have Nothing To Say, Say Nothing
Many businesses and professionals will at some point encounter a visit with an investigator. The investigator may represent a government agency, an internal compliance department, or a third party. Many people mistakenly believe that if they attend the interview and answer the questions, everything will be fine.
This is not always so. It is not uncommon to hear from clients who were ambushed at or ill-prepared for an interview say: “But I thought the truth would set me free.” While many investigators are professional, there are some who can be overly aggressive, less than candid about the purpose of the interview, or who like to play “gotcha.” For example, a government regulatory agency investigator might innocently profess to have a few general questions. It might be about any number of topics, such as:
Many clients, pleased with being recognized by the investigator, are more than happy to wax extensively about their profession, business, or industry. And talk themselves into a jam that can often be avoided through proper thoughtfulness and preparation.
The following are general suggestions for investigative interviews. (Some of the suggestions may apply to interviews with government investigators but may not be suitable for meetings with your employer, for example.)
Guidelines for the Interview. Guidelines for the Interview. Find out as much as you can beforehand about the purpose of the interview and the topics to be covered or have your lawyer do so for you. Ask the investigator to explain the purpose of the interview and the ground to be covered in the interview. Ask if the topics will include dates, particular events, or particular individuals or organizations so you can be prepared. Ask if there are any documents that the investigator is looking for or looking at.
Prepare for the Interview. Prepare thoroughly for the interview. In advance of the interview, carefully review any documents which relate to the subject matter of the interview. Look for any hiccups or lapses that may have occurred in the particular transaction or subject area. Consider the reason why you are being interviewed. For example, does a person have a grudge about how a matter transpired or did you make a mistake? Review the laws and regulations that effect the transaction(s). Carefully read any regulatory guidance on the subject. Look at the dates of the transaction(s) and set out the dates in chronological order. If you are the target of a government investigation, one of the roles of your attorney is to help you prepare for the interview. Your attorney may conduct “mock” dress rehearsals with you in advance of the actual interview.
Common Interview Mistakes.
(*The laws for making tape recordings vary from state to state. Your attorney can advise you on the propriety of making a recording, based in part upon where the parties to the interview are located.)
www.swansonhatch.com
431 South Seventh Street, Suite 2545
Minneapolis, MN 55415
612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
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Swanson | Hatch, P.A.
431 S. 7th Street, Suite #2545
Minneapolis, MN 55415
612-315-3037
www.swansonhatch.com