Speech: AOI

M. A. DePompolo Products Investigations


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The following speech outline was designed for in-house training programs for investigators, paralegals and associates


As the biblical cite suggests, give a man a fish and he will eat for a day, teach a man to fish and he will never be hungry.  Most speeches on investigating are akin to giving you a fish; you are told when faced with this situation, do that.  Rather, I intend to teach you the art and philosophy of investigating, so you can apply the fundamentals to any matter.

v        Why is it important to know about the theory and philosophy of investigating?

Ø         If you understand the theory and philosophy of investigation, the act of facts collection will follow naturally.

Ø         Control others acting on your behalf.

Ø         Ensure those representing your clients interests conform to your protocols.

Ø         Some tasks may take others more time to get up to speed than to just do it yourself.

v        Everyone wants to learn the secrets.  However, start with the premise that there are no secrets.  If you understand and adopt the principles of facts investigation, no one will need to tell you what questions to ask.

Ø         You will find that getting started is always the hardest.  Just make the first step and the other foot will follow.

Ø         Do not let fear of rejection control your actions.

v        What makes a good investigator?

Ø         Writing skills are perhaps the single most important characteristic of an investigator.  Without good written communication, facts and information are often useless.

·           Documenting findings is as important as the act of facts collection.

·           Repackage the material to effectively communicate what the witness knows.  Don’t make it a laundry list of statements or a rambling narrative of the interview.  Subjects in interviews jump around, but the written summary should organize the witness's knowledge and perspective creating a story of the event that might actually be interesting to read.

·           Plainly interpret, contribute understanding, but never slant.  When you are adding your own perspective or an alternative understanding, make sure you notify the reader.

·           Attempt to communicate witnesses’ thoughts through the witnesses’ perspectives.

·           Dictate notes after the interview.

·           Prepare formal written documentation ASAP after interview.

·           Important nuances may be lost and you may lose the flavor of the material or person.  Genuine?

Ø         Understand that you may know a little about a lot of things and nothing about most.

·           Start with a working understanding of the subject.

·           Stop if you think you know what happened because earning will cease.

Ø         A fact collector is not an advocate, rather approaches the fact witness's potential testimony from an independent position.

·           Attorneys conducting fact collecting might need to change hats.

·           The fact collector in an interview should be neutral.

·           If the fact collector is biased, then the bias will limit openness to other possibilities.

·           Bias might limit exploration of certain avenues of inquiry.

·           The interviewer will not learn the complete knowledge of the fact witness.

·           Those you serve will be left with an incomplete understanding of the potential testimony of the fact witness.

·           Decisions with regard to the fact witness might then be made based upon an incomplete set of facts.

·           Resulting in surprises at deposition or trial.

Ø         Be considerate of others

·           Call to set up an appointment for the interview, even if it to set up a telephone interview.  This will allow the witness to begin thinking about the subject.

·           Consider timing of the contact.  Even though most people are home at dinnertime, do not call then.

·           Leave a telephone recorded message with your office and/or home telephone number.  Most people will respond.  If they do not call you back, at least they will know what you are calling about when you do reach them.  Use guilt to your advantage.  After messages are left and no response for a while, it will gnaw at them just as it would you.  Chances are, they might become even more accommodative.

Ø            Be humble.  Even if you think you know the proper approach, assume you don’t.  Ask.

·           People like to feel that they are in command of knowledge and control of access.  They do not like to be told their job, even if you think you know it better than they do.

·           The television "gumshoe" character Columbo presented as a bumbling detective, stopping short of being perceived as an idiot.  He was always led to the answer.

·           You might feel, as I certainly have in the past, that you have to be in control of the request for information.  Perhaps under the assumption that you know this person has what you want, so they are not going to get away with blowing you off.  Well, if the person you are dealing with wants to give you a hard time, the situation will not be improved by butting heads.  Rather, let the other party reveal the information under their terms, not yours.

·           Most of us do not like to reveal our ignorance.  Wrongly, we feel we should be confident that we know what we are doing because that confidence will give us the drive to obtain what we are after.  Sometimes the witness knows more than you do about what is going on and your faking it will not be seen as genuine.

·           Appearance of being an honest person with a genuine inquiry will cause others to be more open and receptive.

Ø            Identify gatekeepers and protocols.

·           Gatekeepers might not be who you think they are.

·  For instance, getting a proposal to the attention of an attorney might be more effective if that proposal is championed by the attorney’s paralegal.

·           Allow gatekeepers to establish the protocols.

·           Gatekeepers can often make or break progress.  They can also do much of the work for you in arranging interviews or collecting materials.

·           Keep gatekeepers involved and do not attempt to go around them.  You must work with them no matter how difficult they make things.

v        Outlines help, but can also be limiting.  Outlines should serve as a general line of inquiry and include specific questions that you must include, or those you might forget about.

Ø         Too rigid of an outline causes you to focus on the outline and not on what the witness said.

·           You may presume too much and miss avenues of inquiry you never thought of following.

·           Be open to new lines of inquiry.

·           You cannot find something unless you look for it.  You will not look for it if you are closed to the possibilities.  Outlines can limit the possibilities; hence, they can limit what you will find.

Ø         Steer the interview, but do not guide the interview, let it flow.

·           Steer to keep the interview on course.

·           Guiding suggests predetermined area of importance of fact witness knowledge.

·           Learn how the witness thinks, not reinforce how you think.

·           The interview may be the first time the witness has thought of the subject matter in an organized way.  Often their knowledge is a jumble of disconnected images or facts.

·           Be a facilitator to help them to assemble the assortment of mental images, not a guide.  Their knowledge is their potential testimony, don’t make it yours.

v        What you say to a witness can be immensely important.

Ø         The forms of questions are important.  Some may have to take off the adversarial hat.

·           In depositions it is common to ask questions for which the answer is known.  However, a component of a good interview is to your learn how the witness thinks, not getting them to agree with how you think.  A witness may revert to their original thinking after the interview and surprise you at trial.

·           Ask neutral questions.  If you ask questions that are leading or actually statements in disguise, you may not learn as much as if you had asked simple questions.

·           The greatest compliment an interviewer can receive is being told after deposition or trial testimony that the witness testified exactly like your interview memorandum described.

·           The position on the approach to the case or what facts to use may change between the interview and trial.

·           The form of questions can reveal your position.  Generally it is best not to leave a trail for other parties.

Ø         Keep the fact witness potential testimony clean.  Better off saying little or nothing about facts of the case.

·           Do not impart knowledge.

·           Fact witness testimony may be discounted if it can be shown that they have been tainted.

·           Do not describe what other witnesses said.

·           Mistakes can be costly in high stakes cases.

Ø         In the field of cognitive psychology, it has been demonstrated that a person can and will adopt third party knowledge (post-event information) and incorporate that newly acquired information into their own set of facts or replace the original set of facts with the adopted set of facts or information.

·           Eyewitness Testimony by Elizabeth F. Loftus, Harvard University Press

·           Eyewitness Testimony by Gary L. Wells and Elizabeth F. Loftus, Cambridge University Press

·           Memory Surprising New Insights Into How We Remember And Why We Forget by Elizabeth Loftus, Addison-Wesley Publishing Co.

·           Cognitive psychologists call changes in the memory processes various things, but they have demonstrated in tests that memories can be enforced, supplemented, combined, enhanced, created, replaced or otherwise altered.

·           The very nature of the question has been proven to influence the response of the witness.  For instance, Loftas and Palmer interviewed two groups of subjects after they had viewed a film of the same car crash.  All the questions asked of each group were the same, except for one question.  One group was asked “About how fast were the cars going when they hit each other?”  The other group was asked “About how fast were the cars going when they smashed into each other?”  Then both groups were asked, “Did you see any broken glass?”  There was no broken glass in the film of the crash, but the group that was asked the question with word smashed were roughly twice as likely to say they saw broken glass as the group using the word "hit" in an earlier question.  So, the term "smashed" in the question made the memory of the accident more severe.

Ø         One of the most difficult aspects of fact witness interviewing is not imparting knowledge or influencing fact witness potential testimony by the very nature of the interview process.

·           A conundrum arises.  How else can you learn if the witness possesses certain knowledge unless you ask?

·           Certain questions might contain a body of knowledge that the witness did not possess.  A power of suggestion can innocently be hidden within the question.

·           Be mindful of the process of how memories are retained and do the best you can to preserve the fact witness’ memories intact.

Ø         Required communication to the witnesses.

·           You must continue to reveal to the witness who you represent until you are confident they understand it.  Generally, you can never tell them too often.  If something goes wrong, you want them to know who is who.

Ø         Optional post-interview communication with a witness.

·           After the interview, follow up with a thank you note card identifying who you represent.  For instance, “On behalf of Nissan, thank you for taking the time to talk to me regarding your knowledge of an accident at 7th and High Streets on June 4th 2000 in downtown Des Moines.  Facts are necessary for making informed decisions.  Your contribution will help to make that possible.”  Former president George H. W. Bush was said to have risen through the ranks of governement positions partly because he systematically paid tribute to those with whom he worked.  A simple "thank you" can help you to succeed.

v        Truth

Ø         What is truth?

·           The “truth” is truth as known or understood by the witness.  “We picture facts to ourselves.”  L. Wittgenstein, Tractatus.  There is no right and wrong to potential testimony.  It is only the truth as known by the witness.  Often witnesses like to know how their potential testimony fits in with other witnesses or facts.  Do not attempt to build consensus and solidify knowledge by reinforcing their comfort level until you are sure of the direction of the case.

Ø         Let the witness know that you are interested in learning the truth as they know it.

·           The interview is simply to collect facts. 

·           How the facts are used and by which party is not the purpose of the interview.

·           The best thing a witnesses can say when they take the stand and asked what you said to them, “He/She told me to tell the truth.”

Ø         Truth works in both directions.

·           Be open and honest with them.  If they will likely be deposed or may be considered to be a potential witness at trial, tell them.  By doing so they may be more receptive when you attempt to arrange deposition or trial testimony.

v        Strive to obtain the truth, not a story consistent with your beliefs.

Ø         Learn the strengths and weaknesses of the case.

·           It is best to know the strengths and weaknesses of your case as early as possible before trial.

·           Early evaluation allows case managers to determine posturing of the case development, for example building a case to reduce or increase settlement value or develop the case for trial.

·           If you are not open to learning weaknesses of your case, then you will not likely have a workaround solution when met with the inconsistent set of facts.

v        Locking down witnesses to facts or a line of potential testimony.

Ø         Statements

·           The case-responsible attorney should have the sole discretion of what facts to lock down in the form of a statement or other discoverable material.

·           The strongest statements are those that are written by the witnesses, but this can be dangerous.

·           Pre-prepared statements should be written under the direction of the attorney and reviewed with the witness for revision or confirmation and ultimate signature.  Otherwise, a statement can be weakened or essentially nullified by the witness testifying differently and saying with respect to the written statement, “I really didn’t read it over, I just figured it was written like to told them, but they got it wrong.”

·           Recorded statements are generally stronger.

v        Understanding human nature.

Ø         Goldilocks syndrome

·           Some are too hot.  People that want to please often tell you what they think you want to hear.

·           Some are too cold.  They bark, but rarely bite.  It may be hard to learn what they know.

·           Most fact witnesses are just right.

Ø         Use your persona, don’t try to be someone else.

·           There is no one way of approaching people and conducting the interview.  What works for one person may not work for others.

·           Don’t feel you must be comfortable with the subject to be effective.  There are times when clearly the witness knows more about the subject than you do.  That is why you went to them in the first place, to learn from them.

·           Honesty, integrity and ethics count more with witnesses than knowledge, facts and being a smooth operator.

·           The importance of winning favor of a witness is often under recognized.

Ø         Witnesses will go the extra mile for some, but not others.  Which do you want to be?

Ø         The knowledge base or native intelligence of others is probably greater than you think.

v        Understand how we perceive events and how we think.

Ø         Christopher Chabris and Daniel Simons in The Invisible Gorilla demonstrated that “Our minds do not work the way we think they do.”

·           Selective Attention.  A video was shown of a group of people passing a basketball.  The viewer was asked to count how many times the players in white passed the ball.  During the short video, a person wearing a gorilla costume walked among the group, pounded chest, then walked out of the field of view.  Only about 50% of people who watched the video saw the gorilla.

·           Monkey Business Illusion.  A group of people passed a basketball and the viewer was asked to count how many times the players in white passed the ball.  During the play a person in a gorilla suit walked among the players, pounded chest, then continued out of the field of view.  Only about 50% of viewers noticed that the curtain color changed and a player walked off the stage when the gorilla walked on the stage.  Viewers, like me, this second time around were focusing on the gorilla and not paying attention to other events.

·           Tests demonstrate that people focus on and perceive events differently.

Ø         A witness’s knowledge base is derived from their perspective of the event.

·           This is why two people can experience the same event and have a different knowledge base of that event.

·           A perspective is not necessarily right or wrong, it is a different view and understanding of the same event.

Ø         A fact collector should not attempt to “sort it out” for the fact witness.  Doing so would be a perversion of the intent of facts collection.

·           Simply learn the fact witness knowledge base through their perspective.

·           In law, the judge or jury has the privilege to sort and weigh facts.

·           Interfering in this process is tantamount to tainting the testimony of a fact witness.

v        Fact versus information

Ø         Facts are useful to lawyers.  Information may be nice to know, but is often useless.

·           It is exceedingly important to discern between fact and information, otherwise unproductive efforts and costs may be expended.

·           A fact is something that should be considered as potentially admissible in a court of law.

·           At best, information may suggest where to look for facts.

·           It may be a fact that a person possesses knowledge or has an opinion, but the knowledge or opinion may not be a fact.

·           In a logical sequence of events starting at point “A” and ending at “E” and we know A, B, C & E, do we know “D”, think we know it or believe that we should know it?  Most people would offer “D” as a fact simply because it computes and completes their picture of reality.

Ø         The usefulness of facts can be time specific.  In one time frame the fact may be relevant.  In another time frame the fact may be irrelevant, but nevertheless exists and may have an impact on other facts in the case.

·           If you are approaching the issue from your perception of the case and not the witness’s perspective, you are closed to all possibilities and may miss the point.

Ø         When collecting facts, always be mindful of how to use the fact.

·           Will the fact require foundation or support?  Lay the groundwork.

·           Will that witness’s testimony be sufficient to enter the fact and how?

v        What is a fact?  Definitions summarized from Bing.com, Dictionary.com and MerriamWebster.com.

Ø         Commonly understood definition of fact.

·           Something known to be true: something that can be shown to be true, to exist, or to have happened; Truth or reality of something: the truth or actual existence of something, as opposed to the supposition of something or a belief about something; A truth known by actual experience or observation; something known to be true.

·           The generally accepted definition of a fact to the common person is rooted in truth, actuality.

·           Truth is inherent in the term “fact.”

Ø         Legal definition of fact.

·           An actual or alleged event or circumstance, as distinguished from its legal effect or consequence.

·           A question concerning the reality of an alleged event or circumstance in a trial by jury, usually determined by the jury.

·           The key word is “alleged” in the above legal definition. 

·           The generally accepted definition of a fact in law is what is accepted as truth by a judge or jury.  Truth is deterministic and derived.

Ø         Accepting the different meanings of the term fact will assist the interviewer in understanding a fact witness’s potential testimony.  A fact offered by a fact witness might not meet the legal definition of a fact.

v        The implications of facts for the fact collector as they pertain to the field of law.

Ø         A witness's understanding of the fact is a representation of reality.  Loosely referring to Wittgenstein.

·           Witness’s knowledge is not reality, it is a picture of reality.

·           A fact according to a witness is a picture of reality that might exist only in their mind.

·           The witness’s picture of reality may or may not describe reality.

·           Therefore, a witness cannot be right or wrong, only their picture of reality might be wrong.  The witness can be both truthful and incorrect at the same time.

Ø         Just because something is a fact does not mean it is inherently correct.

·           Facts should be considered indifferent.

·           Facts may possess underlying truth or falsehood.  For instance, if I say "the Earth is flat", it is a fact that I said it.  But there is no underlying truth to the statement.

·           If facts are viewed as pieces of a puzzle, make sure the pieces belong to your puzzle and fit.

·           In law, the arbiter, judge or juror will decide the truth of a fact.

Ø         Facts do not take sides, parties chose facts to align with their side and suppositions.

Ø         Facts exist apart from position and perspective.  Just because a party chooses not to use a fact does not make the fact less of a fact or the fact go away.  It is remarkable how many people make this mistake.

·           When you decide what facts fit your case, do not ignore the facts left out.  They may be an indication of the weaknesses in your case that should be addressed.

·           As the late Ambassador and Senator Patrick Moynihan said, “Everyone is entitled to their own opinions, but they are not entitled to their own facts.”

v        The philosophy of facts according to MADPI.  Ways to think about categorizing facts.

Ø         It is important to ponder the philosophy of facts, step back and view the bigger picture.

Ø         The “monotheistic” fact is one that requires acceptance and belief in that fact to the exclusion of all other facts.  All the eggs are in one basket, if that basket holds, the belief in the fact can be powerful.

Ø         The “transcendental” fact may be difficult to lay foundation for but if accepted and believed, may be very strong.

·           Transcendental facts carry a greater meaning.

·           This type of fact is bigger than the fact itself and transcends boundaries of other facts.

·           There may be a lingering attachment to the fact even if the fact is disputed and attacked.

·           It may be valued as "a gift from God" if you have such facts in your case.

Ø         The “pantheistic” fact requires the acceptance and belief in a multitude of related facts in order for this fact to survive.

·           Often employed to communicate complex or technical subjects.

·           The greater the number of supporting facts, the greater the likelihood some facts will not survive scrutiny.

·           The overriding concept may get whittled away or otherwise diminished in significance.

·           May carry the greatest risk to success.

Ø         The “humanistic” fact is dependant upon the individual that possesses the fact.

·           This type of fact will stand or fall with the credibility of the person asserting the fact or acquiring it, witness or juror.

·           Personally satisfying for those that believe in it and may be all that is necessary for conversion.

Ø         Monotheistic and transcendental facts can coexist and pantheistic and humanistic facts can coexist.  However, monotheistic and pantheistic, transcendental and humanistic facts are mutually exclusive and will cause conflicts in your case.

Ø         The strongest cases are constructed with monotheistic and transcendental facts.

Ø         If a case must be constructed upon pantheistic facts, limit the supporting facts.

Ø         If a case must be constructed upon humanistic facts, make sure the selected persons can effectively communicate the concepts to the point of adoption of the concepts by others.  Mere acceptance of the concept may cause complete failure.


v        Reach inside yourself for a greater understanding of human nature, how people shape facts and are shaped by them, and you will become a better fact collector.


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