This is the fourth in a series of six articles on the “Dozen Do’s and Don’ts of Corporate Internal Investigations.” Read the firstsecond and third installments.

In our previous article, we discussed how to avoid complications arising from the multiple parties and interests involved in an internal investigation (“Do identify your client”) and how to effectively interview key employees and witnesses by bringing important documents and exhibits to interviews (“Do Come Armed”). In this article, we cover the importance of the timing and sequence of your witness interviews (“Don’t Start At The Top”) and proper staffing for your interviews (“Don’t be a lone ranger.”)

7. Don’t start at the top

Interviews of key company personnel are one of your best opportunities to gather information from a multitude of first-hand sources. Because of the importance of these interviews, it is necessary that you foster candor in the witness and enter the interview as prepared as possible. One way to encourage candor is to interview personnel outside the presence of senior executives. While, as discussed in last week’s article, the witness must be informed that counsel represents the company and not the witness, the mere presence of senior personnel at the interview can cause a witness to answer less openly.

In addition, interviews should be sequenced with an eye toward learning as much information as possible before the interviews of the most important witnesses. To accomplish this, counsel should interview lower level and less culpable employees first. Once the time comes to interview the most significant and most culpable employees (who may have the greatest incentive to lie or be evasive), you will already have a large base of knowledge about the relevant events. This base of knowledge will allow you to probe more deeply and ask better follow-up questions when interviewing the most important witnesses.

8. Don’t be a lone ranger

Because witness interviews are so critical to a successful investigation, counsel should strive to staff interviews with two attorneys: a questioner and a note taker. This approach allows the questioner to observe demeanor and body language, and to focus on formulating the right line of questioning. The note taker, on the other hand, in addition to taking notes that are of critical importance in memorializing the investigation, must be able to listen to both what the person is saying and what the person is not saying. In addition, the note taker should keep in mind the work-product doctrine: instead of merely transcribing the interview, the note taker should record his or her mental impressions.

You may only have one chance to conduct an interview of a given witness. The interviewer must not give up on any leads or lines of investigation in the face of resistance or evasiveness from the witness. Instead, follow up on all bits and pieces of information that may become important, and try to exhaust the witness’ knowledge of all relevant topics. A tag team approach makes singling out and keeping track of topics for follow-up much easier.

In the next article, we’ll address the next two of our dozen Dos and Don’ts: “Do be a historian” and “Don’t be a sieve.”