Facts, Not Characterizations, Rule the Day

Part Seven in our Ten-Part Series on Investigation Blunders to Avoid 

Last month, we emphasized creating interviews where witnesses feel open and free to share.  That involves getting out of their way through short, open-ended prompts or questions.  You should not take from that advice, however, that witnesses can simply characterize events and have that be taken at face value.  In fact, by continuing to prompt witnesses to tell you more, you should acquire more details and facts, pushing beyond characterizations and generalizations.

As noted previously, as investigators, hearing someone say, “he was drunk,” isn’t nearly as relevant and informative as, “I came across him sleeping in the supply closet.  His mouth was open and he was drooling.  When I dropped a box of files he didn’t wake up.  He reeked of bourbon.” At some point in the interview, after the witness tells you the person was drunk, make sure you have them “tell [you] more.”

In employment discrimination matters, witnesses will often characterize coworkers in broad strokes.  That is important to hear and to know, but it’s simply the entry point for additional information.  What examples do they have?  Is that based on firsthand experience or what they’ve heard from others?  Keep peeling away the layers so you have sufficient evidence, one way or another, to reach your own conclusions regarding the conduct at issue.

Avoid the Following Investigation Blunders
In February we provided you with an overview of “Investigation Blunders” to avoid in 2020 (click here).  Over the rest of the year, we will be highlighting each in turn.

1.Not investigating “hearsay” or “rumor” or not investigating because the complainant asked you not to
2.Sitting on your hands
3.Prioritizing being done over being thorough
4.Failing to talk to comparators or former employees
5.Building a case instead of investigating a complaint with an open mind
6.Talking too much and/or closing off possible responses by using leading or accusatory questions
7.Not getting facts – letting the witness characterize events
8.Promising confidentiality
9.Checking your other senses – including common sense – at the door
10.Relying too much (or at all!) on “demeanor” evidence