As a labor and employment law litigator, the credibility of witnesses is a core subject for my practice. Over the years, we all learn ways to deal with witnesses who are - - or think they are - - good liars. One of my tricks that I use when a good liar is testifying about one of his/her lies is to distract the triers of fact so that they are not looking at his/her face. If I’m successful, they won’t conclude that he/she was being honest just observing facial expressions.
For the rest of you who are not trail lawyers but do internal investigations, figuring out the “he said/she said” standoff is a major concern. Luckily, Mike Johnson will be presenting at this year’s SHRM Conference and will share with you his wealth of knowledge on “Deception Detection.”
Given my interest in his subject, interviewing Michael Johnson, the CEO of Clear Law Institute, was a natural fit for my SHRM 2017 blog of one of the presenters.
I started by asking Michael to "tell me a little bit about your background and how it led to your decision to start Clear Law Institute"
Here’s what Michael had to say:
When I was a U.S. Department of Justice lawyer in the late 1990s, I brought one of DOJ’s first “pattern or practice” sexual harassment cases, which was against a police department. The case involved everything from allegations of inappropriate sexual comments and pornography in the workplace to allegations of sexual assault of an employee. When I interviewed the persons who had conducted the internal investigations of these complaints, I was fascinated by how they had reached their decisions on who to believe. Often times, they would make a credibility determination based on their “gut instinct,” which seemed to be heavily influenced by the interviewee's demeanor. For example, if the alleged victim was not crying when interviewed, they thought this meant she was likely lying. Whereas, if the accused looked them in the eye, they thought that suggested that he was telling the truth.
I started to wonder if there is any scientific research on how to best determine who is telling the truth and who is lying. I found that there are a group of several dozen researchers working in universities around the world who study methods for interviewing witnesses and determining credibility. Their research indicates that many of the stereotypical deception cues that people often rely on are inaccurate. As a result, people are very poor at detecting deception. Indeed, the average person in research studies can correctly identify who is telling the truth and who is lying only 55 percent of the time. This is not very good, considering that you would expect people to get it right 50 percent of the time if they just guessed.
Fortunately, researchers have made progress in identifying valid cues to deception and truthfulness and effective questioning techniques. Unfortunately, there is still a gap in what scientists know about the best ways to detect deception and what practitioners know.
I then turned to some particular questions I had about Mike and Clear Law Institute. Here are Michael’s answers to my questions:
1. HR professionals are often asked to investigate “he said/she said” cases, such as sexual harassment allegations. Why is it important that HR professionals try to reach conclusions on what happened in these cases?
While you may not always be able to conclude what occurred in a “he said/she said” sexual harassment case, you should try. If you never reach conclusions about what happened in these cases, you send a message to victims that they should not come forward unless they have an eyewitness to the misconduct or some other “smoking gun” evidence. You also send a message to harassers that they can do what they want, as long as they commit the harassment in private.
2. What are common mistakes that people make when judging credibility?
Researchers have found that, when judging credibility, people often rely on inaccurate, stereotypical cues to deception. Many of these inaccurate cues are “body language” cues of nervousness. But nervousness is not a good predictor of deception. Truth tellers may simply be nervous about being interviewed, and liars may make a concerted effort to mask any signs of nervousness. As a result, contrary to stereotypes, liars are not more likely than truth-tellers to avoid eye contact or appear more fidgety than truth tellers.
3. In an employee misconduct investigation, how can HR professionals better determine who is telling the truth and who isn’t?
Instead of looking for nervous body language, HR professionals should focus on getting the person to talk and listening closely to the answers. Instead of going through a series of scripted questions, the HR professional should ask the witness to describe everything about the alleged incident, giving as much detail as possible.
In an ideal world, people would tell the truth. But if someone is going to lie, you want him to lie as much as possible. That is, you want him to commit to a story with as many details as possible. You can then look for evidence or other witnesses to confirm or contradict those details.
4. Are there any other questioning techniques that have been shown to help determine who is tel,ling the truth and who is lying?
In some cases, you can use more advanced questioning techniques after asking the person to tell you what happened. For example, there’s interesting research showing that asking the person to tell you the story in reverse order, asking the person to draw the event as they describe it, and asking questions related to time or space help to better differentiate between who is telling the truth and who is lying. Basically, these types of questions make it more difficult for liars to maintain their deception. Of course, these questions won’t be applicable in some investigations, but they can be helpful in others.
Mike is presenting at a MEGA session, Detecting Lies and Deception: Practical Skills for HR Professionals on Monday, June 19 at 2:00 p.m.. I am very excited about learning some additional tricks from him. Please join me there where I will be live-tweeting his session.
Allan H. Weitzman is a Florida Supreme Court Certified Circuit Court Mediator and Florida Bar Board Certified Labor and Employment Attorney – a combination of specialized certifications that are held by very few others. He is the Founder of Weitzman Arbitration & Mediation Services LLC.
Allan retired from the practice of law on October 31, 2017. Prior to his retirement, all of those 44+ years were at the Proskauer law firm, where Allan was first a summer associate, then an associate and ultimately a partner in Proskauer’ s Labor & Employment Law Department, where he also served as head of the labor and employment team in Proskauer’ s Boca Raton office for 23 years after his 21 years in Proskauer’ s New York Office. He also was co-head of the Disability, Accommodations & Leave Management Group, co-head of the Policies, Handbooks & Training Group and co-head of the Non-Compete and Trade Secrets Practice Group.
During his career, Allan’s practice was multifaceted. Much of the time he was either litigating in state or federal court at the trial and appellate levels. He also appeared before administrative agencies responsible for the enforcement of the numerous antidiscrimination laws and before the National Labor Relations Board. His experience includes negotiating collective bargaining agreements and arbitrating contract disputes. In addition, Allan provided valuable day-to-day and crisis advice to clients in a wide range of businesses and industries, including retailers, banks, office supply companies, insurance, securities, health care, investigators, lodging and gaming, restaurants, television networks, high end fashion design, maritime, charitable organizations, public utilities, sports and entertainment, beer distributors, not-for-profits, importers, manufacturing facilities, staffing companies, construction, aerospace, transportation, higher education, museums, technology, country clubs and airlines. On any given day, the scope of his practice included personnel policy planning, sexual harassment and avoiding litigation when terminating employees.
Corporations also called upon Allan when their former employees engaged in conduct that violated their non-compete agreements. In that regard, Allan took a case all the way to the Supreme Court of Florida and successfully argued that a successor employer can enforce a non-compete agreement signed with a former employer, even when the agreement does not contain a successors and assigns clause and where the employees have not consented to its assignment (Corporate Express Office Products, Inc. v. Phillips, 2003 WL 1883697 (Fla. April 17, 2003)).
On behalf of the Society for Human Resource Management (“SHRM”), Allan and his partner, Paul Salvatore, submitted the amicus brief to the U.S. Supreme Court in Faragher v. City of Boca Raton. The employer's “affirmative defense” that was adopted by the Supreme Court in Faragher was based on the argument made by Allan and Paul that employees who bypass an employer's internal complaint procedure should not benefit from a strict liability standard. Allan also co-authored SHRM's amicus brief in Chapman v. AI Transport, in which he successfully argued that an employer's subjective impressions could be used as valid criteria in its employment decisions. In 2004, Allan co-authored another Supreme Court amicus brief on behalf of SHRM. This time his arguments in the Suders case persuaded the Court to conclude that a constructive discharge was not necessarily a tangible employment action that would deprive an employer of the availability of the Faragher affirmative defense.
Allan was named three times by Best Lawyers as “Lawyer of the Year” in Labor Law - Management, Fort Lauderdale (2017), Employment Law - Management, Fort Lauderdale (2016) and Employment Law - Management, Miami (2013).
Allan has earned a first tier Chambers ranking for his outstanding employment law work every year since 2007, naming him “first-class” and a “notable practitioner” who is an “excellent advocate with strong ethics and an unrivalled understanding of business.” He was also described as “amazingly bright” and held out as “bringing the best of both worlds: legal acumen and superb business judgments.” “He gets to the point in the most efficient and effective manner – he has the highest professional standards.”
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