In this article...

• Planning and Preparation
• Engage & Explain
• Account, clarify and challenge
• Closure & keeping the witness “on-side”
• Evaluate

Cases are won and lost on the strength of the witness evidence, factual and expert, but when was the last time that you thought about your interviewing technique and improved your skills?

The PEACE model of interviewing is the national police model for best investigative interviewing practice used for victims, witnesses and suspects. It was developed after growing criticism from the judiciary and John Baldwin’s 1992 enquiry for the Home Office.

PEACE stands for Planning and Preparation, Engage and Explain, Account, Closure and Evaluation: the five stages of interview. Although PEACE is an investigative model used by the police force, it can be applied to interviewing factual witnesses for civil cases to excellent effect.

Planning and Preparation

Draw up an interview plan. It will be time well-spent over the long term and avoid the need to keep reverting to your witnesses for more information.

In your preparations include:-

		understanding the purpose of the interview
		defining the aims and objectives
		recognising the points to prove
		assessing what evidence is available and from where is can be obtained
		assessing what evidence is needed and how you can obtain it
		setting realistic objectives
		preparing the mechanics of the interview (meeting rooms, access to original medical records, facilities to look at x-rays etc)

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Keep the legal tests in mind:-

		Was treatment below the standard expected of a reasonable clinician of that speciality?
		Has the patient suffered an injury as a result of that treatment or are the injuries the natural course of the patient’s underlying disease process?

Connect the facts you already know to the potential allegations from the patient. Identify areas which need investigation, highlight the points needed to prove the potential claim and any possible defences the Trust may have.

Identify all the potential witnesses, not just those mentioned by the patient. You may decide later not to use their evidence, but it is best if they are identified early and informed of their potential involvement, so that it won’t be a surprise later on and you won’t lose touch with them.

Lastly, interview your witnesses as soon as possible, whilst the information is fresh in their minds.

Engage & Explain

This is the interview preamble and is time set aside for you to form a proper relationship with the witness and create an atmosphere of trust. Take time to explain the process, the reasons for the interview, what you will be asking about and what actions may follow.

Account, clarify and challenge

This is the main part of the interview, when the interviewee’s recollection of events is obtained.

There are generally two approaches of inducing recollection: SI (Structured Interviewing, also known as Conversational Management) and CI (Cognitive Interviewing).

SI consists of three phases:-

		free report
		questioning
		second retrieval phase

As well as the 3 phases, SI emphasises rapport building and the use of a questioning strategy guided by the witness’s own free report, rather than being based on a pre-defined protocol.

CI uses the same communicative components as SI but also incorporates cognitive strategies. CI draws on experimental research on memory and is thought to be more effective than simple questioning and increases the completeness and accuracy of what the witnesses can remember.

CI is essentially comprised of four techniques to improve recall in witnesses:-

		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?”) c. sequencing elements (“What were you doing at the time?”)
		instructions to search for details extensively
		instructions to recount events in a variety of orders
		instructions to recount events from a variety of perspectives

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As well as these four techniques, CI emphasises social communication techniques, including transfer of control of the interview to the witness, which helps build rapport. This is achieved through the use of open questions, not interrupting witnesses and timing questions so that they relate to the witness’s retrieval pattern and not to the interviewer’s protocol.

Whichever interviewing technique suits you most, remember:-

		Rapport is important - even though your witness is an experienced professional, they may feel nervous and defensive. If you build good rapport, they will probably volunteer more detail and be better at keeping in touch over the life of the case.
		Make sure that you understand what the witness did, why they did it, what their reasoning was and what the medical records say.
		Get explanations for technical terms – later on you may not remember what the witness meant and you will need a layman’s explanation for the Judge in any event.
		The ideal split of talking time for an effective interview is 20-30% questioner and 70-80% witness.
		Challenge your witness – put the potential allegations to them and ask for their response, but defuse blame. Concentrate on the facts and the reasoning behind their decision-making rather than fault.
		Remember that finding evidence which supports a claim is as important as information which supports a defence. An early admission and settlement in an appropriate case can save significant amounts of legal costs.

Closure & keeping the witness “on-side”

Ensure that all parties have understood what happened during the interview and what will happen next. Ensure you have met your interview objectives. Lastly, leave your witness feeling positive about the process and thank them for their time and help.

Evaluate

After each interview the material that came from it should be ordered and evaluated fully. 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? What are your impressions of the witness: will they impress at trial?

Write up the interview straightaway. Traditionally this is called the Proof of Evidence, to distinguish it from the Witness Statement which will be prepared for exchange during the legal process. Numbered paragraphs in chronological order are preferable and provide a good basis for the Witness Statement later. It should be sent to the witness for checking and finalising before they sign and date it. Think carefully about what you include in the Proof of Evidence. It should contain only the witness’s factual involvement. Keep any additional information, opinion and evidence gathered with potential litigation in mind in a separate attendance note.

Also take a little time to reflect on your own interviewing skills and identify areas for future development or improvement. Remember that Bevan Brittan can help you with training events covering skills as well as the Law.