For many working in human resources, at some point they will be tasked with conducting witness interviews. If there’s litigation, they may assist in witness preparation and/or being present at depositions, trials, and administrative proceedings.
Conducting a clean interview or assisting in witness preparation can be a difficult task – there is no one-size-fits-all process. There is an enormous amount of complexity when you are asking people to describe a situation or explain their behavior. It can be tedious, and it is sometimes beneficial to help employees refresh their recollection either through providing examples, showing them documents, or as active listeners repeating back to them, “This is what I heard you say….”
However, as a recent American Bar Association Ethics Opinion indicates, even if you are not bound by the same rules of ethics that an attorney might be, you need to be careful to make sure that you are clear and what you are looking for is the truth, no matter if it’s good or bad.
In August, the ABA issued Formal Opinion 508, reminding attorneys of various issues that might crop up in witness preparation or deposition testimony, particularly in the age of video proceedings and texting. Deposition or trial witness preparation is generally something that your attorney will conduct, but as part of an investigative process, many HR professionals will either have conducted the original interviews with the witnesses or may be asked questions by the employee after...
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