Take Note

As we approach the 11^th anniversary of the founding of Hulst & Handler LLP, we’re sharing a few top tips for useful and reliable investigations.  We hope these observations are helpful for attorneys who manage investigations, our investigator community, and anybody interested in investigations.

1. Maintain the independence and integrity of the investigation. Investigators are engaged by the client for the limited purpose of conducting an impartial investigation.  Appropriately worded engagement agreements help preserve the independence and impartiality of the investigator and the investigation.  While the agreement itself is privileged, investigators can explain the limited scope of the engagement and the neutrality of their role to witnesses.  An experienced investigator distinguishes between decisions that belong to clients and advice counsel, and those that belong to the investigator.  For example, it is always necessary for the client and/or advice counsel to agree on the scope of the investigation, and it is appropriate to keep the client and/or advice counsel updated on the status of the investigation.  However, the appearance of control of the investigation process by a client or advice counsel threatens the independence and integrity of the investigation process.  Additionally, employees who may be witnesses should not be involved in coordination or management of the investigation.  Even a minor role in managing or communicating about the investigation can create the risk (or appearance) of improper influence over other witnesses.
2. Preserve the attorney-client privilege but assume it may be waived. The attorney-client relationship is between the client and the investigator, not the investigator and outside employment counsel.  Investigators (and advice counsel) should take care that privileged communications between advice counsel and the client are not inadvertently sent to the investigator; this material becomes part of the investigator’s file and is ripe for disclosure.  Investigators also should be wary of including advice counsel on most communications between the investigator and the client to prevent unintended disclosure of advice counsel’s privileged communications and/or an appearance of inappropriate control of the investigation.
3. Avoid “scope creep,” but context matters. Context can explain motivation, culture, relationship dynamics, and other important background information that informs the issues.  Investigators are asked to enter new environments to uncover “what really happened.”  Reaching well-supported findings requires a deep understanding of the relevant facts; if investigators are not thorough, the investigation is not complete.  Skilled investigators determine which stones should be overturned and which can be left undisturbed without jeopardizing the reliability of the findings.
4. Understand employment law. Although investigators reach factual findings (not legal findings), employment law provides the framework for the scope questions and issues investigated.  Investigators who do not have a solid background in employment law are more likely to miss key issues and become sidetracked by irrelevant issues.
5. Have a plan. Investigators should identify the scope questions early in the investigation; scope questions are the roadmap for the investigation and help prevent unnecessary detours.  Investigators also should develop a witness list that contains sufficient detail to easily identify each (potential) witness, outlines their relevance, guides interview order, and tracks interview scheduling efforts.
6. Engage with the evidence. Time spent organizing and synthesizing documents and information is a worthwhile investment.  Given the importance of conducting a prompt investigation, it can be tempting to rush from interview to interview without taking the time to craft a chronology and/or summary of allegations and evidence as the investigation progresses.  However, particularly in large, complex, and/or witness/document-heavy investigations, maintaining an updated chronology and summary of evidence helps investigators spot connections or inconsistencies, analyze the facts, and develop well-supported findings.
7. Develop rapport with witnesses. Impartiality does not require cold or perfunctory interactions with witnesses.  Investigators can – and should – build rapport with witnesses while still maintaining neutrality.  Every witness should feel heard, understood, and respected.  Building rapport and treating witnesses consistently and fairly can make the investigation less disruptive to the workplace, build witnesses’ confidence in the process, and typically produces the information needed.  In most cases, we consider an interview successful when we obtained the necessary information and the witness volunteers that the process was far less unpleasant than expected.
8. Keep the investigation moving. Investigators have a duty to conduct investigations promptly.  Delays outside the investigator’s control are inevitable but when progress is slowed, the investigator should be respectfully persistent, firm, and clear with the witnesses about timing expectations and deadlines.  Also, providing regular progress updates to clients and advice counsel helps to manage expectations and prevent surprises on the client’s side.
9. Verbal findings should be thorough. While it can be tempting to jump on a call with a client or advice counsel to provide a quick verbal overview of findings, it is best to take the necessary time to reach careful and thoughtful verbal findings that will not change substantively once the investigator begins writing a report.  A verbal finding that is not solid will undermine the reliability of an investigation.
10. Write succinct and standalone reports. Our reports analyze the relevant facts and articulate the reasoning that supports our findings.  Rather than recite witness narratives in our reports, we focus on the relevant details, context, and analysis needed for any reader to fully understand the basis for our findings.

What are your top tips for investigations?  We’d love to hear from you!

Gabi Handler Marks and Rachel Hulst are experienced employment attorneys.  Before founding our investigations practice in 2014, we each worked as litigators for over 15 years.  This broad experience continues to inform our work as impartial attorney investigators.