Friday 27 June 2014

Discovering truth without losing trust. A guide to the soft science of conducting a sensitive interview.

Who will this article be of use to?

This article might be of some use to individuals engaging in fact finding, to journalists desiring to gain the truth out of an interviewee, to lawyers who are interviewing their own client or a potential witness, to people who desire to know how to interview or interrogate another individual in order to find the truth in a manner that is not rude or too cumbersome.

How to read this article to gain what is most useful to you? This article is written from the perspective of a lawyer interviewing their client or a potential witness, the second part relates to signs of falsehood or problems, while the first part of this article consists of advice on how to conduct an interview so as to enable the second part to be of use. Parts of this article are geared more towards the law, but can be easily adapted in substance or spirit to use in other professions. What is essential in the first part is how to take positive steps to avoid preventing the second part from being nullified by a lack of good interviewing in the first part. If you are not physically interviewing a person then the procedural steps to assist such would be of little use. In that case skip to the second part of this article below.

Why did I write this article?

I wrote this article to assist people who desire to effectively, courteously and efficiently enquire of the truth from another individual. It is designed to assist the person to gain specific clarity as well as some indication as to the real world value of what has been communicated to them verbally and nonverbally.

An introduction.

One of the first things they teach you at law school is not to confuse the law with your own moral standards. Saying that something is terrible or immoral does not get you marks in legal essays. I shall start with how you should not interview a client.

The origin of the modern lawyer in South Africa is not what you might think. In Great Britain matters were settled by duels to the death. At some stage champions were permitted. People were hired to fight duels for other people. Gradually the fighting became words. The words became arguments. The arguments became opening and closing statements mixed amongst the interviewing of relevant witnesses. A lawyer is a practical thing: they are an expert in fighting with the words. Their advice on whether or not an argument might result in victory or defeat is essential to a client. Like a good translator a good lawyer tells the truth and then advises a client on their best and other options based on the truth. The service you go to a lawyer for is remarkably different from the service you go to a barman or a psychologist for. It is also remarkably different from the service you go to a friend for and the service you go to a priest or pastor for. Lawyers used to be paid by the word: now lawyers tend to be paid by the hour or by the activity they engage in or by their results. When writing an essay for a lecturer an ordinary person might waffle. The art of interviewing a client consists of getting exactly what is needed from the client and nothing less than that while not wasting the client's time. While the interview of a client to gain instructions should by no means put off the client, it should certainly gain the facts as they actually are in order to assist the client and not hinder them. There is a fine line which legal practitioners must walk: between a good bedside manner which is appealing to a client and good for business, and the necessity of gaining information which will be of use to a client. Both of these aspects are essential and are not disparate but can be made to become complimentary. I often found that a client appeared to me, to be saying one thing until I properly interviewed them, and it is only upon this proper interview that the truth in such a case sometimes emerges. Clients also might not realise that they are protected by both legal privilege and confidentiality: it often takes proper interviewing skills to discover the real situation on the ground, which the opponent would certainly bring up in court, but which can be dealt with properly if the legal practitioner is properly informed.

Empathy can be useful, but too much empathy can prevent the truth from coming out and leave the client disenchanted and without a solution to their problem.

When I worked in the family law and divorce unit at the University of the Witwatersrand Law Clinic, I would always try to bring tissues with me for the client. I would also be certain to treat my client with human dignity. This is the useful type of empathy.

There is a different type of empathy that lawyers sometimes display. They might listen to the client go on and on about a story saying that something is 'terrible': all the while not understanding at all what the client's actual problem is.

An effective lawyer should ask incisive questions, questions which discover the truth of what the client intends to convey. You could well listen to your client speaking for half an hour about the problem while charging them all the while for the time: as they remain no closer to solving their problem. Make no mistake I advocate therapy and assistance for a client should they require it: but a lawyer is not a psychologist. Yes, have empathy. Yes, do not judge a client harshly. However, what a client goes to a lawyer for is not a shoulder to cry upon: it is a champion to fight a battle or a wise guide to assist them on the path forward.

Questioning a client and clarifying what they are saying while narrowing down on what their actual legal problem is and whether you can assist them with it can save both your time and their time. If you do not get the full story from the client it could be very embarrassing on the witness stand for both you and your client who might subsequently face perjury charges. The job of a lawyer is to find the truth and then advise their client as best as they can based upon this finding of truth. Have empathy, but make sure that you ask direct questions of your client which have direct answers. If your only words to your client are 'go on' or 'that is terrible' then your client could get the same service for free from their local barman. A client comes to a lawyer for legal advice that is what they expect. There are many things which you would tell your doctor which you would not tell any other individual. If your doctor asks you personal questions you are liable to give honest answers because these questions are necessary for them to assist you. Yes, a doctor with a good bedside manner is a good thing: yet that bedside manner should not get in the way of them healing you. This is the same fine line that lawyers must walk.

Lawyers are creatures of instruction.

Lawyers are creatures of instruction. If I sit across from a client and hear their story and write up their instructions about what the predicament is, there is a reason why they came to me. A person goes to a lawyer for advice and assistance. What type of advice am I to give them?

Some people might look at their client and tell them that they would be stupid to follow a certain path. Such a practitioner might well inform clients that they are making a major mistake and to follow their advice, shouting the client down like an angry father.

A better approach might be to inform the client of all the practical options including their nonlegal options such as mediation or dropping the matter entirely. The practitioner might then inform the client of the consequences which might come about from each of the actions and the legal principles which might govern their path forward. It would be advisable to inform a client both of the legal and the practical consequences of whatever path forward they choose. The difference between the first and the second approach is that in the first approach it is the lawyer who is instructing the client. In the second scenario the client is instructing the lawyer in an informed manner. It is the job of a lawyer to guide a client, not to parent a client. Clients have parents just as they have barmen, psychologists, and other professionals who are best able to assist the client in that manner. The lawyer is merely a guide, it is the client who determines their own path forward. A lawyer can always recuse himself from a client at an early stage if they believe it would be inadvisable to take the case further. The advantage of advising a client of the different options is that it covers a lawyer in the event that the client subsequently decides to litigate against them. If a lawyer believes the client is making the wrong decision they can inform them of this quietly and respectfully by informing them of the consequences of the decision and the likely outcomes: both verbally and in writing. In that event then the client if they go ahead with an ill-advised course, cannot say that the lawyer did not inform them of the consequences of their actions. There is a vast difference between informing a client of the consequences of their actions and making decisions for a client in contrast to the will of the client. The lawyer is a creature of instruction. A lawyer is a servant of the client. Yes, a lawyer is also an officer of the court and is bound by the ethics of the profession. The case is the client's case not the lawyer's case.

Thou shalt not deceive the court.

It is not entirely rare in South Africa that a client might bring a problem to a lawyer for the enforcement of something unlawful. A lawyer is an officer of the court. A lawyer may not deceive the court. If there is no legal solution to a client's problem the best approach is to inform the client of this, and why this is the case. Sometimes then a nonlegal solution might emerge to assist the client. If the client is in an illegal relationship it might be possible for the client to leave that relationship. Mediation might assist a problem where the law cannot enforce something.

However, assisting a client in deceiving the court is not only risky and unethical and patently illegal: it also prevents other lawful solutions to a problem from being pursued. The appropriate dispute resolution mantra has caught much ground in South Africa lately. Where there is a potent solution to a problem that does not waste the time of the court: a client should be made aware of this.
Lawyers have been punished by the courts for the action of taking matters which should have been mediated before a judge.

You're an officer of the courts before anything else.

Every now and then a client emerges, who believes that threatening a legal practitioner will get what they desire. Lawyers are protected by international law precisely because so many lawyers are executed or injured by untoward parties. If a client is unsatisfied with your advice then in that event the best approach is simply to be polite to them and cordial, and to advise them as any other clients might be advised. If they choose to leave as you are unwilling to compromise your integrity, politely allow them to do so. In addition it might be best to write the client a written version of your advice in case they subsequently become ill-advisedly determined to litigate against you.

There are also clients who might consider your good legal advice to not assist them in their cause, who might inform you that you have not assisted them afterwards: where there's nothing that you as a lawyer can do to assist them. The best approach is to be polite to the client, to wish them well on their way and to cover yourself in the event of litigation, by giving the client a written form of your opinion if necessary.

I stated that the first part of this work would focus on what not to do with the client. While I certainly stated what you should do with the client also: the purpose was to display the type of behaviours which would be inadvisable to engage in.

The second part of this work is about truth finding. It is essential in interviewing your own clients and witnesses that you discover what the truth actually is. A good understanding of the real world is a good start in discovering this. How far can a person see at night with perfect vision when an event occurred 100 feet away? What is the likely response of a person to another individual pulling a gun on them? How is a person likely to act after a trauma has occurred? How likely is an event to have occurred? These are all points upon which additional questioning might be necessary. If something does not feel right to you: it is often that your subconscious mind has discovered a hole in testimony. Discovering whether or not something might be a falsehood: does not mean for certain that it is a falsehood. For instance: pigs fly, they do: in the cargo holds of aeroplanes. What is essential is that if something comes up which might be a cue to your discovering a relevant deception: that an additional effort is placed on a particular point in order to wring out the truth of the matter. It is always advisable to ask enough questions and to clarify enough in order to gain a good mental picture of the events which might have taken place. It is also essential to ask what did not happen, and other such questions which a truthful person might easily be able to answer. Remember to trust your gut instinct: the gut instinct is often the working of experience and your picking up upon subconscious cues that something is not right.

Micro-expressions. There are only between 20 and 30 expressions which the human face is capable of making. You may observe images of these expressions from various studies. There are less than 10 simple expressions such as anger or contempt, and the combination of these universal expressions: such as surprised and angry or surprised and scared or surprised and happy: make up a mere 20 to 30 expressions. While most human beings have a good control of their own expression of emotion: these expressions nonetheless often appear for split seconds when a person is deceiving another as to their emotions. With practice an individual can catch micro-expressions. If a person should be feeling contempt for you but they are feeling anger at you: if a person should be feeling love for you but they are feeling contempt for you: or for another individual: this might go across their face for a moment at a time: and it certainly is an important cue to question the individual more on the aspect that they are speaking upon.

Consistency of a story. There's nothing more consistent than a madman's delusion. If he says that everyone is out to get him and you say: why don't we ask them if they are out to get you: he shall say that people in a conspiracy will generally not admit to the conspiracy. I read this logic problem years ago in the works of Chesterton. Looking for an internal consistency in a thing can certainly be helpful but it can also be distracting. If something is internally consistent it does not mean that it is true. However, there is a different type of consistency: whether something survives becoming big. For instance: why would these individuals have a conspiracy against the madman: that is to say how did this come about and to what purpose. Things such as motive and opportunity and the means to perform an action might certainly discount a false but consistent story. The desire of liars to tell consistent stories certainly assists in another matter further on, and getting a liar to tell the story in such a way that inconsistencies emerge certainly can be advantageous. It is the big consistency of a statement: whether it holds up in the real world that determines whether it is simply a false model of the world or the real thing that is being described.

Falsehood is generated in a different part of the brain than truth is. It also requires more mental energy than simply telling the truth. For some reason human beings do not like lying. A person is more likely to equivocate or avoid a question than lie. Often a liar might therefore take the approach of attacking the person who is attempting to discover the truth. They might also attempt to implicate someone else or else otherwise throw an unprepared or naive person off their track and onto a false track created for their own purposes. This approach is similar to the approach used by military forces to avoid tracking parties sent to discover their position: a false trail is set out quite clearly, so clearly an uninformed person might follow it into an ambush. Picking up the real trail sometimes requires more skill, experience and additional effort. A liar might also tell the truth in such a way that they know they will not be believed. This false sign of falsehood is intentional and there to mislead. When a person does lie it often causes emotions of guilt, sadness, powerlessness, shame, or other such negative responses within the liar. Lie detector tests are designed to detect fear via the autonomous systems of the human body. Not every liar experiences negative emotions as a result of their lie. Some liars might feel contempt, display superiority, or otherwise enjoy telling a lie. There are two approaches to lying which are generally adopted by liars: one which sees it as a last resort, as something necessary in order to avoid some evil or gain some good when honesty would not gain such a result. Such a person might feel weak in their lying. They might consider themselves to have been forced to resort to force. Such a person would be experiencing negative emotions. In contrast a liar might enjoy lying, they might take great glee out of misleading and manipulating other individuals. Such a liar might in fact unintentionally show positive emotions that should not be present or lack of negative emotions where these should be present.

While this is only a small model of the world and I am told it would not be comprehensive for psychological purposes: it is useful to turn emotions into mathematical models. Happiness objectively speaking should refer to a gain while sadness should refer to a loss. Fear should refer to the possibility of a loss or a lost opportunity while anger could well be a response to either loss or fear of loss: when an individual believes another is responsible for this situation. Frustration in contrast might refer to a situation similar to anger but where the other individual is not considered guilty but simply an obstacle. When an individual tells a story and their emotions do not match with what objectively should be there: this might be a sign that additional interrogation of a witness or additional instruction taking from a client is required. These sorts of emotions not only appear in speech and body language but additionally they also appear on the face of an individual by their micro-expressions in many cases.

If you watch movies on television you might notice that characters are separated by physical obstacles when they are at odds. A character who is weak might be portrayed as shorter. This type of visualisation plays upon basic human animal psychology. People have a desire subconsciously to separate themselves from their enemies and to associate themselves with those whom they like. This probably comes all the way from primitive man who had to avoid his predators and competitors, and gain advantage from his allies, and sought to bring himself closer to his prey items. A person who is lying might attempt to distance himself from the truth finder at points where they lie. They might attempt to avert their gaze, or place a physical object between them and the truth finder, or separate them from their self via the gestures of their hands. Expressions might also appear on the face of a liar at this point. A high-pitched voice has been known to be associated with the loss of control, while a voice which goes below its ordinary pitch suggests that an individual is attempting to keep control of their self. Again looking at basic psychology of human beings and animals: a liar is the enemy of the truth finder as far as the liar is concerned. They might very well be lying for the sake of the truth finder. However, their voice might betray this evolutionary response in as much as the placing of an object or averting of eye contact can be a cue as to falsehood in some instances. Direct eye contact suggests a lack of a barrier between two individuals. Language also picks up on this basic psychology. If someone is an enemy of yours you might refer to a task you did together as a task done by 'enemy and I' rather than as a task done by 'we' or 'us.'

Parts of speech are also vital in detecting a lie.
A truth teller is more likely to refer to himself or herself in a sentence. A truth teller is more likely to use the word 'I' or the word 'me.' The liar is more likely to refer to others than themselves. A truth teller might say that they locked the door. A liar however is more likely to distance themselves from their own actions. The liar might say the door appeared locked or the door was locked. The liar therefore is not in their false story which makes the liar feel more comfortable about telling the lie. If an individual equivocates or is vague it might be a sign that the equivocation itself or the vagueness itself is truthful but that there is more to the story which they desire to hide from the truth finder. If an individual attempts to divert attention such as via an intentional approach of answering a question via another question or by attempting to alter the topic or through avoidance or attack this might be an indication of deception. A liar not only attempts to distance themselves from the false story they are informing you of, they are also more likely to express negative emotions in the telling of their story in order to mask their own negative response to their own act of lying whether consciously or subconsciously, this can be discovered through the use of negative adjectives in the description of how an individual was feeling in a moment.

The tense in which a story is told can also be an indicator of deception. The part of the brain which relates to memory when accessed: usually comes to be expressed in the past tense. The part of the brain which relates to deception: however operates in the present tense. A person who is engaging in falsehood might tell a story all in the past tense until such points where they are telling a falsehood. A person also might accidentally through their use of the past tense reveal their belief that a missing person is in fact dead. Watching carefully and at all relevant times for the tense in which an individual person explain something in can often reveal a point which requires more interrogation or better instructions in, in order to avoid embarrassment at trial. A liar is also more likely to use simpler sentence structure: the lie itself takes up a certain degree of mental acuity which is then not available for the use of more complex sentences. For instance a liar is more likely to use basic action words such as 'walk' or 'go' or 'run' and less likely to use words such as traverse, or sentences such as 'I missed the bus and thus had to proceed on foot.' A truth teller is more likely to inform you of what did not happen. Words such as 'but' or 'however' which relate to what did not occur are far more likely to be used by a truth teller. For instance: 'I took Fourth Street rather than Fifth Street because there was a traffic jam on Fifth Street!' It is more difficult to lie about what did not happen than to lie about what did happen. The lie by its very definition is a false small model of the world. The lie might be very consistent within itself by the ingenuity of the lie teller. A lie or falsehood however is small by its very definition because it is a model of the world rather than a retelling of actual events within the real world. It is because of the vast brainpower demanded to create such a small model of the world with consistency: that liars sometimes contradict themselves and use simpler language and simpler stories. The mere consistency of the lie can sometimes reveal it to a focused truth finder. The liar needs to remember their lie and therefore requires a degree of consistency and simplicity in their story. A lie therefore often involves a scarcity of important detail. A truth teller might relay a full inventory of their senses. They might refer to the smell of something and the taste of something, the colour of something, the size of something and so forth. The liar has to be careful in how much detail they give. Practised liars might intentionally give detail in order to appear not to be working off a false model of the world. The false truth in such a case can often be brought to contradict itself through intelligent and thoughtful interrogation or gathering of instructions. As most people do not have perfect memories, their lies are often something which can be dug out and discovered.

Human beings often lie throughout the day. A lawyer is bound by their ethics to be a truth teller. A witness on the stand is likewise is bound to tell the truth. It is not a favour to a client to allow them to get away with the lie to you only to find that your opponent on the stand has succeeded in causing your client to visibly perjure themselves. It is essential that a lawyer discovers what the actual truth is. A proper but respectful interview of a client as to the facts is therefore essential. Awareness of signs of falsehood, and proper interviewing skills are an important part of the lawyer's profession. It is better to be prepared for bad news and to be able to better control the narrative, than to be caught surprised in cross-examination.

I find it essential to know the type of subject which emerges in a specific type of case. There are certain types of questions which you are required to know the answers to: to proceed with a specific type of case. Euphemism can at times be essential, but it can also create false impressions in the mind of the practitioner. Bedside manner is essential, but if it prevents proper fact-finding: it is not a service to the client but a hindrance to their cause.

These are just some of the techniques I use to come to the truth of a situation. The first part referred largely to the type of interview approach and bedside manner which is or is not acceptable if you desire to properly gain instructions which will be useful moving forward. The second type referred to fact-finding and discovering the truth, it is better that a client to be embarrassed in front of you than in front of the entire world on the witness stand. A non-judgemental but intelligent and honest attitude when you have discovered a falsehood the client has revealed to you could go a long way in preventing the breakdown of a relationship between you and your client.

In the information technology business in most cases what a client desires and what the client is delivered is not congruent. In law the same could also happen if a client is not properly interviewed. Clarification is essential, and discovering facts relevant to the case which need to be dealt with in a different way than other facts: is essential. It is better that your client admit to some weakness to you than have it discovered on the witness stand and your client be exposed to an opponent and possible jail time.

Parts of speech such as 'his' or 'her' or their can also cause a lot of problems.

Whenever an individual is speaking about an issue it is important to determine what objects are involved, what people are involved, and what part each person and each object plays specifically and separately from all other objects and people involved. While parts of speech such as 'he' and 'she' do in fact assist in detecting falsehood, it can be very necessary to ask a client to clarify. For instance: a client might say that a person known as 'he,' shot another individual. One might assume that he is a specific individual, it is advisable however to clarify who that individual is and how they relate to the events and to the client in question. If the client has personal animosity towards the person in question and a reason to lie on the stand: it could well destroy your case against that individual.

If something a client says does not make sense make sure to ask more about it.

If a person's story is not consistent this is often because they are attempting to hide something or brush over it: the thing they are attempting to hide may or may not be as bad as you think it is, but it is essential to discover what this thing is as it might have a bearing on the moving forward of the case.

When interviewing a client it is of great importance to not only get their full contact details and to verify these details with the client, but to get alternative contact details for the client, and the details of an individual they trust who can get hold of them if they are not available. It is also essential to gather the right information for pleadings, to satisfy statute, to satisfy the rules of court, and to satisfy the government statistics office. I find it especially useful to ask yourself the question: does what my client is saying make sense? If it does not make sense to you, you cannot expect to make sense to the court.

While paying due accord to the value of bedside manner in interviewing a client or a witness, it is important to make sure that the information gleaned is not only accurate but reliable and useful in further pursuing the matter with the client.

Lawyers might often simply make a summary of what they believe the client was saying to them. In some ways this is useful, but only if the summary is made in addition to extensive word for word notes. Systems such as Teeline shorthand notation, good typing skills, and the use of good interviewing skills can allow the making of a good record of exactly what the client actually said which can then be reviewed and investigated to ensure the client is served to the best of your abilities. A summary accompanying this would only be an asset adding to it, but the original instructions which the client actually gave might contain vital information that a summary missed altogether to the detriment of the client's case.

At all times a lawyer must realise that they are the servant and the tool of their clients: there is not a place for their own ego but only a place for their own integrity in dealing with a client. Staying objective on a matter rests upon this principle.

I hope that this article has been useful to you. It could be useful both to a practitioner of the law and to anyone hoping to discover the truth. An interview with a client needs to be a combination of truth finding and good manners and good courtesy and etiquette.

Thank you very much for reading this article. I hope it assists as a reference work for you in your pursuit of better interviewing clients and witnesses and engaging in fact-finding. These techniques are methods I've used both in law and in journalism. In law they are all the more important: the consequences of making a mistake can end your career for ever.

About the author and disclaimer.

At present I am not a practising attorney, nor am I a practising advocate. In accordance with South African definitions of what the lawyer is: I am a lawyer. A lawyer is everything from a paralegal to a judge, it refers to anyone who engages in providing legal services within the law. My time at the Witwatersrand University Law Clinic was as a student counsellor under the supervision of an admitted attorney. This entailed interviewing clients, writing documents and pleadings, and relaying advice to clients and so forth but while under the watchful eye of an admitted attorney. My experience of interviewing clients at present is mainly gained from journalism and from my time at the University of the Witwatersrand Law Clinic over a period of about a year and additionally of three weeks as part of compulsory practical coursework subsequent to my graduation, as a compulsory part of the Legal Education and Development programme of the Law Society which replaces a year of articles with six months of coursework and exams. I took this position at the University of the Witwatersrand Law Clinic essentially twice: one day per week for about a year as part of a compulsory subject in my final year at Wits and subsequent to this I took the same position at the Witwatersrand University Law Clinic for a much shorter second time as part of a course requirement when I was completing the statutory postgraduate six-month practical legal training course at the Law Society. I hope to write the board exams in a month or two. Nothing I've stated is legal advice, nor is it advice on the ethics of the profession. It is simply the way in which I believe an interview should best be completed. Nothing I have said is to compare myself to other lawyers or individuals practising any type of legal service. I do not state that I'm better or worse than any other legal practitioner, I am merely relaying methods which I believe might well be effective in the correct circumstances. I do not guarantee that these methods are effective or the best course of action. I do not accept liability for harm incurred in following the above methods. This article should not be considered to encompass all aspects of an interview and is merely meant to add to your own extensive interviewing knowledge. External verification methods are still an important aspect of verification of witness statements.

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