Interview tips

Civil litigation is won and lost on the strength of witness evidence, factual and expert. Quality evidence requires quality investigations and investigative interviews. Research suggests that effective interviewers know the psychology of interviewing and scientific experimentation, have a range of practical techniques and get interview feedback. Litigators specialising in civil litigation should reflect on the interview process and learn the PEACE model techniques.

The PEACE model of interviewing was developed in response to criticism of police interviewing techniques and it is the best investigative interviewing practice used for victims, witnesses and suspects.

PEACE: what, when and why

PEACE stands for planning and preparation, engage and explain, account, closure and evaluation: the five stages of interview.

Planning and preparation

Without planning, interviews fail before they begin. The crucial elements are:

• understand the purpose of the interview
• obtain background information on the incident and witness;
• understand the law that applies;
• define the objectives of the interview;
• understand and recognise the points to prove;
• assess what evidence is available and from where it can be obtained;
• assess what evidence is needed and how it can be obtained;
• set realistic objectives; and
• prepare the mechanics of the interview (venue, logistics, facilities).

Engage and explain

The interview preamble helps form trust with the witness, creating a co-operative and relaxed relationship. This is the 'training phase', where the interviewer learns about the witness, to adapt the interview.

The key elements are:

• create a good impression with courtesy and understanding;
• and out and address individual needs;
• explain the process, the reason behind the interview, what will be covered and what actions may follow; and
• explain key ground rules, such as: report everything, even if it seems irrelevant; ask if anything is unclear; be comfortable saying 'I don't know'.

Account, clarify and challenge

is the main part where the witness's recollection of events is obtained.

There are three interview techniques in PEACE :

• free recall (FR);
• conversation management (CM) or structured interviewing (SI); and
• cognitive interviewing (CI)

Research suggests that taking a witness through a series of pre-prepared questions is less successful in eliciting full and accurate information than these three techniques.

The first two techniques consist of three phases:

• free report/uninterrupted account;
• questioning (expanding, clarifying and challenging), and
• second retrieval phase.

CI uses the same phases and witness-centric questioning strategy and incorporates cognitive strategies. CI relies on the multiple trace theory, which suggests that memories are made up of a network of associations, and there are several ways to trigger a memory.

CI comprises of four techniques:

(1) Context reinstatement '“ mental reinstatement of the physical and personal contexts that existed at the time: (a) emotional elements ('How were you feeling at the time?'); (b) perceptual features ('Put yourself back at that point in time and picture the room; how did it smell; what could you hear?') and (c) sequencing elements ('What were you doing at the time?').

(2) Report everything '“ instructions to search for details extensively.

3) Reverse order '“ instructions to recount events in a variety of orders.

(4) Change perspective '“ instructions to recount events from a variety of perspectives.

As well as these four techniques, CI emphasises social communication, transfer of control of the interview to the witness to build rapport, use of open questions, not interrupting witnesses and timing questions so that they relate to the witness's retrieval pattern.

Closure

The closing stage is often forgotten, but keeps the witness 'on side'. The aims are:

• ensure a mutual understanding about the interview and what happens next;
• verify that all aspects have been adequately covered; ensure interview objectives were met; and
• leave the witness feeling positive about providing accurate and reliable information in the future.

Evaluate

This stage concludes the PEACE interview, where the interviewer evaluates the material obtained and considers:

• Were the objectives of the interview achieved?
• Is a further interview necessary?
• What other enquiries need to be made as corroboration?
• What further investigations are needed?
• Will the witness impress at trial?

This is also an opportunity to consider how well the interview went and what improvements could be made.

Research shows that brief training in cognitive interviewing techniques can help interviewers obtain 35 per cent more correct information. The PEACE model and cognitive interviewing techniques will help improve litigation by expanding lawyers' interviewing range, inspiring them to invest in improving interview skills and developing a set of checklists to improve the planning and effectiveness of witness interviews.