As a litigation consultant and expert witness, I frequently have the opportunity to examine and evaluate the investigative work performed by other professionals. These engagements are both fascinating and edifying. Disappointingly, I found that much of the (investigative and legal) work I’ve reviewed involve the commission of serious, albeit preventable mistakes. Of them, the following are the most common I see:
Mistake # 1
Not conducting an investigation when one is necessary.
The failure to conduct an investigation when needed or required can be embarrassing and expensive (and in some instances, unlawful). A lawyer once told me that his company had not conducted an obviously necessary investigation because “the alleged discrimination and retaliation had not occurred”. Fortunately, he is no longer practicing law. But if such logic was rational, investigations would never be necessary and discrimination and retaliation could only be proven if the offender graciously admitted it.
Mistake # 2
Using law enforcement vernacular instead of the language of business.
Replace police and law enforcement terminology with that which is softer, less harsh. Use the language common to the private sector and be more thoughtful of your customer and how your investigative results will be used.
Mistake # 3
Imposing unrealistic time restraints on a complex investigation.
Complex problems which have evolved over time cannot be solved in an afternoon. Employers and their decision-makers must allow the fact-finder the time he or she needs to properly conduct their investigation and bring it to a meaningful conclusion.
Mistake # 4
Seeking employee prosecution as an investigative objective.
An organization’s decision to prosecute offending employees should be made for business reasons and no other. In spite of what many think, prosecution is expensive and its outcome is often disappointing.
Mistake # 5
Inflexible investigative objectives and excessively rigid processes.
The process of investigation is fluid and dynamic. Because no two investigations are perfectly identical, the approach must be reasonable and the investigator as well as his process, flexible.
Mistake # 6
Bending the rules.
Rules, policies, laws and codes provide society and organizations within structure and order. A fact-finder’s failure to obey them is a disservice to all those that his investigation touches, including himself.
Mistake # 7
Threatening to involve law enforcement or bring criminal charges against a subject during a workplace investigation.
Some act-finders are taught this technique. It is crude, unprofessional and very possibly unlawful. In some jurisdictions, such behavior is considered extortion and is a crime. Do not threaten those you interview and do not attempt to obtain cooperation by means of extortion.
Mistake # 8
Thinking experience trumps skill.
When it comes to investigations in the private sector, experience rarely trumps skill. Instead, experience is integral component of skill. Generally, having done something many times does not equate to the ability of doing it well.
Mistake # 10
Allowing, asking or insisting the fact-finder to make recommendations.
The fact-finder should resist the temptation of making recommendations. The tradition of providing the decision-maker recommendations is unnecessary and tends to diminish the credibility of the fact-finder and increases the employer’s liability.
Mistake # 11
Failure to identify one’s objectives before initiating an investigation.
This is an unnecessary and often costly mistake. Properly crafted objectives steer the investigation and those who conduct it.
Mistake # 12
Failing to interview (anyone).
Remarkably, some fact-finders choose not to interview anyone. Based on the results developed using one or more of the other methods of investigation, they conclude that interviewing is unnecessary. Regardless of the quality of information at hand, at least interview the subject. As reasoned by the Court in Cotran, the term “good cause” when for the purpose of deciding discipline is a “reasoned conclusion … supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.”
Mistake # 13
Hiring former law enforcement officers believing that they can lawfully do things the professional private sector investigator cannot.
Those with prior law enforcement experience have no special privileges or immunity and they must obey the law just as anyone else. Only properly authorized law enforcement officials can immunize someone or their investigative activities and such immunization is not automatic for anyone.
Mistake # 14
Attempting to conduct a complex workplace investigation without a complete understanding of the legal risks associated with it.
Workplace investigations are complex affairs. By their very nature, they expose even the most experienced and careful fact-finder to legal risks.
Mistake # 15
Using inexperienced contract investigators.
Not all professional investigators are created equal. When using contract investigators ensure they are properly licensed and have insurance. Also ensure they have the experience necessary to perform the services promised.
Mistake # 16
Becoming so engrossed in one’s investigation (or story) that the fact-finder fails to scrutinize the information he or she is given.
In the course of your investigation, don’t take anything for granted, especially that which you are told. Some people will mislead you intentional. Others will do it by mistake. Verify all that you are told and do not consider anything a fact until you have fact-checked it.
Mistake # 17
Believing employee prosecution is an effective deterrent.
If prosecution was an effective deterrent we’d have very little crime. Instead our jails and prisons are overflowing. The decision to prosecute should be strictly a business decision, not an emotional one.
Mistake # 18
Failing to enjoy one’s work and have fun.
If you don’t like your job and can find another, do so. Life is too short not to enjoy one’s work and have a little fun while doing it.