Any litigator tasking interviews of potential witnesses needs to know about the no-contact rule (ABA Model Rule 4.2)[1], which forbids talking to represented people on the other side of a case. This also goes for most current employees of the other side —  certainly any employee senior enough to make critical decisions or who was involved in the matter under dispute.

Ordinarily, the interviewing of former employees of the company on the other side is OK, but there are lots detailed issues that come up before deciding an interview is permissible.

Does your investigator know what those issues are? Even if he knows, will he care or just proceed as he would have anyway? The difference is important, because interview material improperly gathered could be ruled inadmissible and you could be sanctioned. You may be able to talk to the former employees, but you’re not allowed to get privileged or confidential information out of them. Your investigator should know what those concepts mean.

The topic of permissible ex-employee interviewing came up recently when Honeywell talked to a former employee of a company called ICM Controls and then retained him as a consultant to Honeywell. ICM had sued Honeywell for patent infringement, and Honeywell wanted to interview the former employee Andrew Nguyen, co-inventor of the patent in question (the other inventor is the current ICM president).[2]

ICM alleged that Nguyen may have disclosed privileged or confidential information he obtained as a result of his employment.  Honeywell responded that Nguyen had not worked for ICM for more than 20 years and that ICM had never disclosed him as a person with information relevant to its claims, “much less privileged or confidential information.”

Honeywell relied on a New York case, Muriel Siebert v. Intuit, 8 N.Y. 3d 506 (2007), which recognized that contacting an opponent’s former employee (even those privy to confidential or privileged information) may be appropriate as long as counsel operates within certain boundaries and takes measures to avoid disclosure of privileged or confidential information.

Those measures are all-important, and are why for years our firm has gone into interviews with a template agreed to by our clients. This includes how we represent ourselves and makes certain that we first tell the person we are interviewing that we do not want them to give us any privileged or confidential information. We also ask them whether or not they are represented by a lawyer. If they are, we terminate the call.

We posted about our procedures in Trial Ethics: A Template Can Save Your Life and I’ve been talking about the issue for years and have given CLE courses all over the country to state bars and the ABA. If your investigator can’t pass the simple test of flagging problems in the case we wrote about or the Honeywell matter, find yourself an investigator who can.

In the Honeywell case, Honeywell’s lawyer first made sure that Nguyen wasn’t working with ICM and wasn’t privy to privileged information, the court said. Continuing to use Ngyuen as a consultant “would entail some risk of straying into arguably privileged information,” the court warned, but that is a highly unusual fact pattern for most interviews with former employees.

The Honeywell case was a closer call than most, but in the end it affirmed that with careful precautions in place, former employees of opposing parties may be interviewed if they are unrepresented.

As long as you know the rules and follow them.


[1] In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

[2] ICM Controls Corp. v. Honeywell International, U.S. District Court, N.D.N.Y. 5:12-cv-01766.

What conveys the truth more effectively?

A snapshot of a person’s values and accomplishments in the form of a quotation? Or a long essay about that person that will contain the short clip but surround it with other facts that could contradict or water down the single line (or build on the quote and infuse it with needed context)?

Photos: ShareAlike 2.0 Japan.

It’s a good question because you can make a case that at times, either answer is preferable. It might be nice to have both. That’s why in our memos, we have bullet-point highlights on top and then all the facts (usually in chronological order) in the body of the document.

How best to convey the essence of something is the subject in part of a marvelous show at New York’s International Center for Photography: a fascinating pairing by Richard Choi of video and still photos plucked from the 30 seconds or so of the video. Billed as “a meditation on the stream of life and its expression as a single image, between film and photography, between life and our memory of it,” it prompted in me all kinds of thoughts about fact investigation.

To know fully what someone’s life consisted of you would have to be there for the whole time, and that’s not practical. In abstracting a life to get the essence of it, you need to make editorial decisions about what to include and what to omit. Sometimes the gaps are there in testimony and documentation, and sometimes you have so much information that you are obliged to leave some out.

One of the pairings in the exhibition that struck me was a short film of a mother and her young daughter and son kneeling in prayer in what looks like a church or chapel. The photo shows them immobile and deep in prayer. But the video reveals that the little boy couldn’t stop fidgeting for most of the time, and the photo captured him at a rare single moment of rest.

The difference between a snapshot in time and a flow of information comes up in many walks of life. In accounting a balance sheet is a snapshot of the last second of the period, but profit and loss and cash flow are financial “movies” of the company’s life over the course of a quarter or year. To process a movie or a photo you think differently, and that certainly goes for reading financial records. Companies can clean up a balance sheet for the end of the year or the quarter, and then go back into debt on January 2, for instance. A “movie” of  a whole year can obscure a big change that happened in the business at one end of the period or another.

Another way the photo vs. movie issue comes up with investigators is when we do interviews. We have to boil down for the client the remarks most relevant to their inquiry. If possible it’s nice to provide clients with a transcript of a whole interview, but in many states lawyers and their agents are discouraged from recording telephone calls as a matter of ethics. In other states, it’s forbidden by law to record a phone call without telling the other person that a recording is under way. We wrote about this in Taping Phone Calls Is Not Worth the Risk.

But now, there exists the ability to transcribe automatically whole YouTube videos. I wrote about the revolution in investigation that this kind of computing power would bring in Legal Jobs In the Age of Artificial IntelligenceIf you can easily provide the context for the quote you pull out of a one-hour interview or video, it’s always good to do so.

Soon we may be able to transcribe automatically all YouTube videos in existence and then search the texts for what we need. But you can’t hand your client 15,000 hours of transcripts of every former employee of Company X talking about what it’s like to work there.

You will need to play editor, even if it’s a matter of giving selected clips of video. In some cases, a single 10-second statement will do the trick, and here “photo” will triumph over “movie.”

Some people just like privacy, but others form companies with a view to concealing any link between that company and themselves. If you are hiding assets from creditors, that’s a plus (for you, not the creditors).

Picking a company name can be more difficult than many think. A lot of the obvious company names are taken since you can’t have the same name as an existing company in your state. So people often follow rules that make it easier to pick a name quickly, a lot like the lazy way many choose passwords.

If you want to hide your company from an asset searcher’s prying eyes, don’t do the following.

  1. Don’t name your company after something guessable by those who know you. People name things after the street they grew up on, but ex-wives looking for assets often know what that street is called (and we ask that question in our divorce questionnaire). The same goes for a beloved summer camp attended in their youth or a favorite pet. Keep the sentimental out of your naming convention.
  2. Don’t pick an acronym of your children’s names and think we won’t see through that. ZKR Holdings could be anything, but if your kids are named Zach, Karen and Ryan, we will be onto you.
  3. Don’t name companies after things related to your hobby. An opera buff named all his companies after – yes – operas. He did this before his marriage began to disintegrate, but it was easy to find companies we didn’t know about by searching a list of the 200 most popular operas.
  4. Don’t group your names. If you name your first company after the street in Boston where you opened for business, using the street names all around there will make it easier to guess for new companies. Also, if we know your company is called Alpha Investments, don’t try for Alpha Investments II, III, IV etc. When we see that during an asset search, our eyes light up.
  5. Don’t name a company in a new state the same thing it was named in the old state, especially if everyone you’re hiding from knows the name of the one in the old state.

The hardest companies to find are those that followed these rules:

  1. They picked a name that could mean anything. If you are the owner of seven dry cleaners in northern Indiana, European Furniture Imports is a name we wouldn’t immediately link to you. Even better, Eusall Ltd. That could be anything.
  2. They paid someone to be the incorporator. It’s no good spending all this time on picking a sneaky name, and then putting yourself down as the incorporator or agent for service of process. Some states don’t list the name of the incorporator, but some do.
  3. When they paid someone to front for their company, they didn’t pay the same lawyer or agent who handles all of their other financial affairs. I once found a bunch of companies by going through the list of about 150 that a person’s lawyer had set up. We ruled out most of them, but a few turned out to belong to the person we were investigating.

For anyone who has ever tried to play pool, it quickly becomes obvious that the best way to get the ball in the pocket isn’t always the most direct.

If there’s another ball in the way or the angle doesn’t work, redirecting the ball off one of the cushions can be the best option. Even if you need to hit the ball without banking it, you may need to strike it on the side instead of straight on. In either case, you’re not looking at the goal but at the indirect means of reaching of the goal.

We’ve been writing for years about meta-thinking: how to look for the things that will get you the thing you want. Don’t google for the lawyer in New York, google for the body that licenses lawyers you’ll be able to look at their list (which isn’t fully indexed by Google). See our posts Meta Searching for Fake Royals and Surprise! Google is There to Make Money. There’s also my book, The Art of Fact Investigation.

I thought of indirect investigation yesterday when in group discussion of lawyers and accountants, we were asked to talk about the moment we knew we were good at our jobs.

Find a Lawyer in Liberia Without a Liberian Website. Go!

My moment came in my first job after law school when my new company asked me to find them a lawyer in Liberia. The country was largely destroyed after years of warfare and there was no workable phone system there.

I found them a lawyer in about an hour. Instead of looking in Liberia or anywhere in Africa, I found a former Liberian president living in the U.S. Midwest where he was teaching at a university.

In Liberia he had been a big shot, but here he was in the phonebook and picked up his home land line at lunchtime. Of course he knew lawyers in Liberia and informed me that they were all using cell phones from Ghana. He recommended two, gave me their numbers, and within two days we had hired one and paid him by wire. Our documents arrived by courier the next week. It sounds simple enough, but nobody else had thought of it.

And How Were You Spelling That?

Another example from the same company a few months later: They had done an interview with someone who recommended talking to a former employee with a very long Italian surname.

The interviewee didn’t’ know how to spell the name, which contained three vowels that, based on pronunciation, could have been a’s, e’s i’s or u’s. There were consonants that could have been single or double. It would have cost a fortune to run databases on all the permutations, which is why they hadn’t found him.

I decided to play around with the permutations in the Social Security Death Index (free), figuring that certain combinations would be rare and certain ones very common. I found the guy with the second-most common possible spelling and we reached him by phone immediately. This after months of fruitless googling.

Sometimes, the bank shot is the way to go.

Investigators are in the business of gathering evidence. Beyond gathering, there is the equally important job of analyzing. Good fact gatherers need to report on evidence but also where it comes from and how reliable it may be.

Evidence was my favorite law school course by far (so perhaps not surprising I work with evidence for a living). What I remember from about day one was my wonderful teacher and future colleague Peter Tillers reminding us that for something to be evidence, it doesn’t have to be very good evidence at all. Just a little bit of a nudge to push knowledge forward will be enough.

If someone says they saw something, that’s evidence. It could be rock solid, it could be garbage. In court, that’s for the finder of fact – jury or judge – to figure out. (Fed. Rules of Evidence 104(b):  “When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.”)

When we do our due diligence work for investors, we never come out and say in a report, “this man is a liar” or “we doubt the reliability of her resume.” Instead, we present the evidence and let the reader decide.

A CFO says he has an advanced degree from Caltech. We can’t check that with Caltech without his permission, but we notice that databases never have a single address for him in California, despite the claimed degree and a few jobs before and after. Could the person really have the degree?

Of course. He could be a scrupulously private person who kept his Chicago cell phone the whole time, lived with family in Pasadena and never got any mail or deliveries in California while studying there. It’s up to our client to ask more questions, or maybe to let us interview a few professors to see if this guy was ever enrolled in their small and selective program. If so, did he graduate?

Evidence also comes from omissions – the hardest thing to program computers to spot. If someone has a 1.5 year gap between their M.A. and their first job, that could mean  a variety of things: Time taken to travel, time spent at a seminary but ultimately deciding not to enter the clergy (we’ve seen it), or the inability to get a job because of bad recommendations. Most commonly, it means leaving a first job off the resume because it wasn’t very interesting or impressive, and it was 20 years ago.

Where evidence comes from is something the rules care a lot about. Even non-lawyers tend to know about the concept of hearsay being excluded – something that the person testifying doesn’t have first-hand knowledge about. But anyone who has taken evidence knows there are many exceptions to the rule.

One is a recording made in an ordinarily conducted activity (Rule 803 (6)). Here is a list of passengers who took flight 5644 on Feb. 8 last year. As long as the airline says it’s a genuine list, you don’t need an eyewitness to say that the people on the list probably took the flight in order to admit the list. The theory is that the airline automatically produces these lists thousands of times a day. There’s not likely to be any special effort to include Mr. Jones on this list if he didn’t really fly.

Compare that to a Dun & Bradstreet report about a company. Who fills out the information about the size of the company’s payroll? It’s annual sales? Mr. Jones provides the numbers if he owns the company. That is not like an airline manifest. It’s much more open to manipulation. It’s evidence, but of a very different quality.

The same goes for a LinkedIn Profile. Indispensable if you want to know what someone wants you to think about their career trajectory. But you need to remember they can leave out anything they want. They can stretch a few dates to cover inconvenient periods of unemployment following a firing, and shove an honorary doctorate into educational qualifications that, at first glance, can look like they have a PhD. (We’ve seen all this too).

It’s all evidence, of course, but it’s up to us to help guide our clients through it so that after proper consideration, they can give it the weight they think it deserves.


Most of us in the business can remember clients who call us to say something like, “We’ve done some pretty serious Googling, so you probably won’t find anything.” We had a prospective client some years ago who said exactly those words, and I wrote them down at the time.

It got to the point that I decided to write a book, The Art of Fact Investigation, so that I could put down in writing — and in detail — why the most serious-minded Google search is never enough.

But I’ve noticed something else over the years about people who decide to do their own fact-finding. Some of them don’t take it seriously enough. That is, it sometimes gets assigned to junior personnel, and it’s not given the weight of being a full-time task.

If you’re a serious litigator, would you prepare for a major cross-examination or closing arguments while keeping an eye on a football game, maybe handling some email at the same time? If you’re a financial advisor, would you look over a prospective $2 million portfolio in these circumstances? If you’re a mediator, would you mediate with the TV on, or in between more important things to do?

Certainly not, yet a lot of people treat deep investigation this way. I blame Google.

Google is a marvelous tool, but so is the hammer. You can’t build a house with just a hammer, but you need a hammer to build a house. You need Google in any investigation, but you need more.

The easiest way to explain why is to consider the difference between what Google can find and what is on the deep web. Not the dark web, where criminals (but also whistleblowers) lurk. The dark web is a small part of the deep web, which is the part of the internet that Google won’t index: Password-protected stuff such as your bank account, but also plenty of free information that still requires a login.

You want to know how much George Jones paid for that house in Jefferson County? It won’t be on Google. It will be on the county’s website. You use Google to get the county’s website, and then you work on that website to see the information. You may need to pay for it, you may need to send someone to the recorder’s office to get the documents, or it may be free. But it’s not on Google.

The same is true of most litigation if you want to see who has sued Jones, professional licenses (if you want to see whether Jones has misbehaved as a doctor), securities filings, and social media.

Serious Googling is start. But if you stop there, you’re really not serious at all about doing a diligent search.

Listen to Philip Segal on The Investigation Game Podcast.

Check our other blog, The Divorce Asset Hunter.

In a partially hilarious, partially disturbing article this week in The Wall Street Journal, “Facebook Has No Sense of Humor,” the Editor in Chief of the satirical website The Babylon Bee related that two patently ridiculous “news” stories had recently been fact-checked by Snopes: The Onion’s “Shelling From Royal Caribbean’s M.S. ‘Allure’ Sinks Carnival Cruise Vessel That Crossed Into Disputed Waters” and the Babylon Bee’s “Ocasio-Cortez Appears on ‘The Price Is Right,’ Guesses Everything Is Free.”

They made me laugh, but then came the more troubling part. The Babylon Bee story headlined “Senator Hirono Demands ACB Be Weighed Against a Duck to See If She Is a Witch” was blocked by the robots at Facebook because the Monty-Python referenced line “we must burn her” appeared in the body of the article.

The real problem for me came after the Bee alerted Facebook to the supposed mistake made by its robots, which had generated a warning that the “incitement to violence” could bring further repercussions if repeated. The Bee appealed to Facebook, but to no avail.

We are the first to argue that robots aren’t really that smart – rather they are amoral and very quick at doing mindless drudgery – as we’ve argued in Artificial Intelligence: Good and Evil All at Once, Just Like its Creators.[i]

This blog doesn’t really give a toss about Facebook. It’s a useful investigatory tool as far as it goes, but if Facebook were to disappear tomorrow, no tears would be shed around here. That its robots weren’t overruled by people with good sense is the better reason not to trust Facebook’s human judges of propriety or morality.

So why should a good investigator have a sense of humor? The same reason, broadly that an investigator needs empathy, just as we said on our companion blog recently. Empathy lets you make better guesses about what someone may do next or may have done previously. Humor is useful because the people we look at also have senses of humor. It’s useful the way empathy is, for filtering purposes as above, and also because humor is a great way to put people you are interviewing at ease. Not always, but when warranted.

If you act like a machine, your results will be as good as a machine’s, but you will get them a lot more slowly than a machine would have.

Where is the value (and fun) in that?

[i] In a full law review article, I argue that artificial intelligence brings a lot of promising tools to investigators, but not because it can investigate for us. Rather, AI can comb through the mountains of new data being created hourly. Before long, we will be able to search transcripts of podcasts and YouTube videos, for example. [Legal Jobs in the Age of Artificial Intelligence: Moving from Today’s Limited Universe of Data Toward the Great Beyond. Savannah Law Review, Vol. 5, No.1 (2017).]

The big guys have been going bankrupt, but the real carnage is yet to come:. Among America’s small businesses. Potential creditors need to get organized for the fight which appears to have been kicked off in New York this month with a fascinating case.

We have seen the big names going down including JC Penney, J. Crew, Neiman Marcus. Many were weak anyway but some that just could not survive being shut down completely for months. The list is at

But what about the smaller businesses that seemed to be doing fine before this happened? And what of their landlords that the businesses hope will help absorb the losses?

For those of us who get involved in asset identification before and during litigation, these are important concerns. Now, a case that could set a precedent for businesses looking to get out of their leases is before a federal judge in New York. It was reported in The New York Times.

An art gallery paying $54,000 a month moved out early when New York shut down in March. It claimed the lease was rendered null and void and that it should have its deposit back, on the basis of frustration of purpose or impossibility of performance.

The case is Venus Over Manhattan Art LLC v. 980 Madison Owner LLC, 1:20-cv-03838, U.S. District Court for the Southern District of New York, filed May 18, 2020.

The gallery claims it cannot have the 500-person openings it needs to because of the shutdown – therefore it is impossible to operate its business. Alternatively, it argues that the purpose of the lease has been frustrated by government edicts, and that it should be released from its contract. It also wants its $365,000 deposit back.

There are a number of possible outcomes:

  1. The case could easily settle. If the gallery wants to survive, it could accept a new lease for less money and apply some of the deposit seized by the landlord to a new deposit, with the rest of the money being used as credit for the new lower rent. This seems like the most likely.
  2. Tenant wins. If a government shutdown because of a pandemic means any business that was closed can get out of a lease, it is a crisis for commercial landlords all over the state (a crisis even bigger than the cash flow one they already have, that is). Landlords could follow some of their larger tenants into chapter 11 bankruptcies.
  3. Landlord wins. If the landlord is content to keep the deposit and rent the space out to someone else, that is one thing. If the landlord decides to hold the tenant to the terms of the lease, it will need to be able to seize or garnish assets that the tenant has. What assets does an art gallery have? You need to investigate.

Also at issue in the case is that in addition to the obligation of the tenant, there was a personal  guarantee that the rent would be paid. The lawsuit does not specify who gave the guarantee, but if the landlord wins, he will not only be able to go after the gallery but also that guarantor. What the guarantor has is also something to be investigated.

The time to look for assets is now. Of course, under the concept of fraudulent conveyance, once the tenant sues the landlord, the tenant cannot transfer assets out of his company in the event that he loses and needs to hand them over. If he loses, those assets can be taken back by the court if he transferred them around the time he sued to get out of the lease. This is called a constructive trust.

Still, it is easier to identify assets now, before he can transfer them to a different name.

As for the guarantor, he may be able to plead that he had no notice of the lawsuit and that his assets are freely transferable. That is an argument that could work. But if it does not, a forward-thinking landlord would want to be able to identify the assets now in the event he needs to go after them to collect.


For more on asset searches, check out our firm’s other blog, The Divorce Asset Hunter.

We always like to say that when we find out about a person, we do so without invading their privacy. That can still mean we find out a lot of things about them that they would rather keep secret, but those facts are derived from what we can legally look at: legal records, mortgages and deeds, secured debts, media reports and social media,

There can also be interviews, but not with people who are represented by counsel and talking to whom would violate rules of professional responsibility governing lawyers.

Like everyone else, I have been thinking about how the current worldwide lockdowns will change my business.

In many cases, the answer is not at all. Throughout the current lockdowns, we have continued to do due diligence, profile litigants, find people to interview and search for assets.

One way things may change will be a curiosity about a person’s exposure to the Covid-19 virus. Eight weeks ago any kind of snooping around about a person’s medical history would have sent up a flare for me. I would have been worried about violating strict records about medical secrecy. Hipaa (the Health Insurance Portability and Accountability Act) has been such a ferocious piece of legislation in its protection of medical history that I barely got asked to violate it.

Contrast that with the Gramm Leach Bliley Act that protects the confidentiality of bank records. Lawyers ask for these without a court order all the time, and we of course decline.

It is only four years since the major controversy over whether the government could force Apple to crack the iPhone of the man who shot 14 people to death in San Bernardino, California. Many Americans took the view that even if cracking the phone could help prevent a co-conspirator from shooting more people, the cost to privacy was too great. The Washington Post reported on two of the polls on the issue. Part of the difference in responses was due to the way the question was asked. But unquestionably, millions of Americans did not want the government going into a terrorist’s phone in case their phones would be next.

Now today, privacy advocates are having second thoughts. Even as The New York Times thundered in an editorial that we shouldn’t have to sacrifice our privacy to fight the corona virus, the paper’s privacy advocate Charlie Warzel is reconsidering his fear of government tracking us through our phones. He hates the idea that private companies can track us (though that is because we let them), but he is not sure about the government tracking us if there is a public health reason for doing so.[i]

My own view is that getting a targeted ad is probably less threatening to my liberty than a permanent government record of where I have been and with whom I have been associating. Advertising clients have anonymized data about us, whereas the government would keep records of our names. Ad blockers can eliminate ads but if phone companies tell the government where we are every second, that is not something we can easily prevent without deciding to give up cell phones.

It is easy to say, “prevent disease and protect privacy,” but how? The Wall Street Journal editorialized:

Planning for the next phase of the pandemic will also heighten concerns and conflict over civil liberties… Testing may be mandatory. Contact tracing may mean government tracking of cellphone data. How much privacy are individuals willing to forfeit for a virus that increasingly appears to pose little danger to a large percentage of the U.S. population? … Ultimately, we may not be able to escape the “immunity passports” that Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, cited as a possibility “under certain circumstances.”

The relaxation of Hippa is underway, although supposedly temporarily, outlined here by Fox Rothschild.

But if enough people decide that more intrusive record keeping is warranted to prevent another outbreak from spreading, will yesterday’s standard of medical privacy ever return?

There is no agreement among even western democracies of what constitutes reasonable privacy. Europeans are aghast at the notion that a couple’s divorce agreement is a matter of public record in some U.S. states. Americans look at you blankly when you tell them that a person’s tax return is a matter of public record in Norway.

We always seek to stay on the right side of the privacy line as we do our work. Even if that line is a bright line, it can still move this way or that. It may be on the move right now.

[i] In researching this blog I also discovered that as much as the New York Times hates data gathering by private companies, its own data gathering controls can be as confusing as some of the companies it bitterly criticizes. Try adjusting the kind of information the Times gathers about you if you read it online. You can opt for “I want to keep my subscription or service but want to delete my personal information that you don’t need in order to provide my subscription or service, unless you have legal reasons for keeping it.” This is as opposed to just ending your subscription. But then if you click the first option to keep your subscription with limited data scraping, you agree that this will terminate your service with the paper. If Facebook had such two such contradictory options, the editorialists would tear it apart.

In honor of President’s Day (still officially known as Washington’s Birthday) a few thoughts about interviewing.

There are so many more facts about ourselves that are in our heads (or the heads of people we know) than there are in databases and court cases. Many times, to get as much as the truth as we need, we are forced to do interviews.

To see this for yourself, Google yourself. How much of what you know about your and your history will you find there? Perhaps one percent, perhaps less. If someone wants to find out where you went to elementary school, who your friends are, who you dated before marrying, where you worked (but didn’t include on your resume), they would have to ask people.

Sharpen Your Axe Before Taking a Swing

An apocryphal quote attributed to Abraham Lincoln was, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe.” This well summarizes my approach to doing an interview. You will not know the right questions to ask until you have done your research.  My sharp axe is the knowledge that Mr. X had a couple of companies his wife didn’t know about. You can’t ask his former colleagues about these companies if you don’t know they exist and are linked to Mr. X. You can’t know all of this unless you do research before picking up the phone.

While preparation is key, so is humility. The well-known rule among litigators “Never ask a question to which you don’t know the answer” may be fine for court or depositions, but that kind of questioning is not the best course of action for a fact investigator. Because we know so much less than we think, over-preparing to the point of anticipating answers will make an interviewer less alert to any surprises that may emerge. Just as we take a fresh approach to each person when we do a public-records check, we need to keep in mind those public records when we start our interview yet be fully aware that the public record is at best a rough abstraction of someone’s life.

Humility Gets Results

George Washington said that “honesty is always the best policy,” and this blog has written for years about the ethical strictures the allow lawyers to “dissemble” but not to tell lies. You can’t pretend to be a police officer (by statute), but the rules of professional responsibility mean you can’t pretend to be a New York Times reporter when you are not.

Still, it is not dishonest if you fail to interrupt someone who is telling something you already know. Listening to something you think you already know is useful for two reasons:

  1. When you let people speak, they become comfortable talking to you. Cut them off and they will let may wait for you to lead them.
  2. They may be about to tell you something you didn’t know. They could start out talking about Mr. Jones, and you think you know all there is to know about Mr. Jones, who is not even the person you are investigating. You care more about Mr. Smith. But then, 30 seconds later the person you’re interviewing tells you that Mr. Jones and Mr. Smith had a terrible disagreement, almost came to blows, and sued one another in small claims court three years ago. If you had interrupted too early, you would have missed all that. You also now get to find Mr. Jones and interview him too.

Checking your ego at the door is therefore to be recommended not just during interviews, but in general. Ronald Reagan said, “There is no limit to the amount of good you can do if you don’t care who gets the credit.”

But the best presidential remark relating to interviewing came from Lyndon Johnson: “You aren’t learning anything when you’re talking.”