Investigative Interviewing: Psychology, Method and Practice Read online

  investigation a daunting and painful undertaking.

  Additionally, there may be events that impact the pace of the investigation that are beyond the control of anyone. Things like illnesses, weather, holidays, schedules, and the unavailability of the players are all things that sometimes no one can

  The Process of Investigation ◾ 11

  control. In the case of undercover, for example, the winter holiday season often creates challenges. In the aerospace and automotive industry, it is not uncommon for employers to shut their doors for the last two weeks of the year. It is precisely that time of year the undercover investigator can make her best headway. Holiday parties, dinners, and other seasonal events provide excellent opportunities to build relationships and gain confidences. The holiday spirit also increases complacency, making the gathering of otherwise useful information much easier. However, in

  the aerospace industry, as in several others, no sooner does the holiday spirit set in, then the organization shuts down and operations are not resumed until shortly after the New Year. All the while, the meter continues to run for the employer client. In order to endure such delays, the employer client, as well as the investigators, must have patience.

  Another example of the need for patience are those matters involving the man-

  agement of workplace aggression and potential violence. Often, the employer, upon discovery of the misconduct, wants to immediately discipline or terminate the malfeasant. This, of course, is a common outcome in these types of matters. However, more often than not, the employer has not conducted a thorough investigation and has not met the standard of proof necessary to discipline or discharge anyone. For organizations like mine, which specializes in managing these matters for employers, the rush to judgment and termination of the suspected by our clients is a challenge for us. In haste there is often waste and in these types of cases, haste can produce very dangerous outcomes. Often there is no immediate need to discipline or terminate. What is needed is a proper and thorough investigation. Facts need to be gathered, statements need to be taken, allegations need to be checked, and, most importantly, barring an immediate danger to human life, the alleged aggressor has rights that must be respected and protected. It has been my experience that lack of respect and rush to judgment has been an historical contributor to producing the very behaviors that the organization was attempting to prevent.

  In addition to time and patience, a successful investigation requires the dedi-

  cation of resources—real money. Regardless of the simplicity or complexity of an investigation, some investment of money will be necessary. Like the free enterprise system, money is an essential fuel that in many ways powers the investigation.

  My clients sometimes debate this. With all sincerity, they will sometimes con-

  tend that they can conduct the investigation under consideration cheaper and

  faster than me. In rare instances, this may be so. However, most often they have neither the skill nor the experience to conduct the investigation properly, no less materially achieve its specific objectives. The mere availability of manpower, equipment, and other resources does not assure success. The fact that the organization already employs a security director, human resource manager, or house counsel

  does not mean that they or the organization is capable, qualified, or even has the time to conduct a proper investigation. Even if capable and qualified, it may make more economic sense to outsource the effort. Consider your own organization

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  for a moment. Does it have the human resources, talent, and time necessary to

  undertake a complex internal investigation? Probably not.

  Allow me to put a finer point on it. Regardless of who does the investigation

  and whose resources and equipment might be used, somebody has to pay for it.

  Simply because the organization employs one or more of the professionals men-

  tioned above, does not mean that their services are free. The question the organization must ask is: Is it more economical to undertake the project itself or outsource it? In order to answer that question, some cost-benefit analysis should be done.

  Cost-benefit analysis in this context is more than just running the numbers.

  Integral to the process is estimating to the finest degree possible, the return on investment (ROI). ROI should be one of the objectives of almost every investigation. It should be intuitively obvious that the higher the ROI, the smaller the economic risk. What’s more, the properly engineered investigation will have established milestones by which those driving the project will be able to periodically measure results, thus enabling them to reassess their plan and modify their objectives dynamically. As such, experienced investigators know cost-benefit analysis is a necessary component of the preparation and preplanning phase of the project.

  Thus, the more complex the contemplated project, the more critical cost-benefit analysis becomes. Following is a typical example.

  Hypothetically, suppose “our” organization suffered what appeared to be a

  fairly significant loss involving a kickback scheme orchestrated by one of our purchasing agents. Preliminary information suggests that, as a result of the scheme, over a period of a couple of years our organization overpaid several vendors more than $300,000. Our security department is brought to bear and its preinvestigation fact-finding effort reveals the overpayment is closer to $750,000.5 Based on an organizational pretax net of 5 percent, analysis suggests that, in order to have instead netted the $750,000, the organization would have had to increase sales by approximately $15 million. Depending on the organization and industry, this may or may not even be possible. Our analysis also suggests that the organization’s inability to use that money elsewhere increased operating costs in the form of finding replacement capital. Taking other facts into consideration and rounding the numbers, the loss actually exceeds $1.2 million.

  Given that such matters lend themselves to recoveries of not only the losses,

  but, in most instances the cost of the investigation, does it not make sense to look outside the organization for professional assistance?6 Considering the burden on the organization’s internal resources, manpower, and the distraction created by a complex investigation of this sort, the smart move is to engage a qualified external resource. The outcome is likely to be better and the organization can instead dedicate itself to what it does best—running its business. I make this point frequently when testifying as an expert witness in matters involving internal investigations.

  Even in instances where the organization has employees dedicated to such matters, it often makes sense to outsource the effort. Doing so conserves the scarce resource of personnel, while putting the project in the hands of experienced professionals

  The Process of Investigation ◾ 13

  undistracted by other responsibilities. Additionally, outsourcing enables some of the legal liability to be shared. When things don’t go well, the opportunity to blame the vendor who provided the investigative services can be very useful.

  The next question, of course, then is what is going to be the cost? The answer is not as simple as it may appear. In the case of undercover, which is typically billed by the week, the organization (the client) and the service provider (the investigative vendor) together can determine the estimated length of the project and do the math.

  Other types of investigations require a little more analysis in order to determine the investment necessary to assure success. Let’s look at this process in a little more detail.

  It is estimated that there are approximately 18,000 active private investigation firms in the United States.7 Although it is nearly impossible to know for sure, it is widely accepted that the private investigation industry in the United States employs something on the order of 40,000 individuals.8 Of those, only a small fraction is engaged in what has come to be called corporate investigations. Corporate investigations are those that spec
ifically involve workplace issues and problems as well as the investigation of crimes and offenses committed against the organization. Of those who claim to offer corporate investigative services, only a handful actually specialize in it. As such, the sample from which I am about to draw the following conclusions is relatively small and, thus, there is some inherent inaccuracy in which I am about to offer. That said, it is fairly safe to say the hourly fees charged by those offering corporate investigative services tend to be on the higher end of the scale for private investigation professionals. And, although fees and pricing practices vary across the country, with some high cost of living areas, such as San Francisco or New York skewing the data, most qualified corporate investigators

  who offer the service as their specialty, charge something on the order of $250 per hour. Some organizations actually exceed $450 per hour for their top investigators. Associates and field investigator fees begin at about $150 per hour. On the whole, it is my experience that it is difficult, if not impossible to engage a qualified corporate investigator of any sophistication for less than $200 per hour. For those readers interested in pursuing this line of work, that should be very good news. For purchasers of these services, it is equally good news. Here’s why.

  Because corporate investigations in practice involve an understanding and

  appreciation of criminal law, civil law, and employment/labor law, few professionals actually have the skills necessary to deliver quality services. Those who do know its value charge accordingly. Conversely, some general practitioners (criminal defense, insurance investigators, and the like) may charge as little as $75 per hour, and some as little as $35 per hour. These professionals find it difficult to even imagine charging $200 per hour for their services, no less someone actually paying it. This gives the consumer of corporate investigative services a decided advantage. Simply by knowing the fee structure of the service offerer, one can generally tell their level of sophistication and experience. This is not to say that by paying more, the client automatically gets more. However, the adage that one gets what one pays for, certainly applies when choosing a corporate investigator.

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  The sophisticated vendor offers more. Professionals capable of delivering

  the type of services we are discussing also understand ROI. They have a fine

  appreciation for business and understand that a mutually beneficial engage-

  ment is only possible when the service provider is able to provide a reasonable ROI. Because most crimes against the business are property crimes, recovery

  is often possible. The professional corporate investigator knows this, and will typically engineer his investigation to facilitate a recovery, to include, if possible, even his fees and expenses. Most private investigators have no appreciation for this opportunity. Many of them, particularly those with law enforcement

  background, will attempt to drive the process toward prosecution of the per-

  petrators. Such an effort or even the suggestion of prosecution, as an investigative objective, should be a red flag to the consumer of such services. Unless it can be demonstrated to contribute to the desired ROI, prosecution should not

  be an objective and should not be pursued.

  Tip: An organization’s decision to prosecute offending employees should be made for business reasons and no other.

  In most instances, the pursuit of prosecution will consume unnecessary resources and contribute little to the outcome of the investigation. For reasons we will discuss later, employee prosecution can be expensive and often very disappointing.

  Tip: Organizations intending to undertake an internal investigation of any

  size or complexity are generally better served seeking the services of an external resource to conduct the investigation. From the standpoint of time, money, and the best use of existing internal resources, it is more economical to outsource most internal investigations.

  1.4.2 Meaningful Objectives

  No investigation of any complexity can be successful without meaningful objec-

  tives. The investigation’s objectives define the fact finder’s purpose, allow him to benchmark his progress, and provide the framework by which the project manager

  coordinates the effort to build his case. I am astounded by how many of my col-

  leagues fail to appreciate this critical fundamental and begin their investigations without articulating or even contemplating their objectives. Those that do, often still miss the point. The investigative objectives must be carefully articulated at the beginning of the process, because they establish the investigation’s starting point and where it is intended to finish.

  The Process of Investigation ◾ 15

  I embrace this concept to such a degree that it is my practice and that of my firm to begin every investigation by negotiating the effort’s objectives with the client. By negotiating, I mean that together we decide what it is we are going to pursue, what information we are seeking, and under what conditions are we going to obtain that information. Together we talk through that which we are attempting to do, how we intend to do it, and who is responsible for what. The objectives make it clear that the investigation’s purpose is proper and lawful. When properly articulated, they demonstrate that both the employer client and the fact finder have pure intentions and that the length they will go to achieve success has been carefully contemplated and is reasonable.

  I go so far as to describe the objectives in the investigative proposal I provide my clients. In doing so, I establish that I understand the needs and desires of the client. It also establishes benchmarks by which we can later measure our results. In fact, other than my case intake notes, typically, the first document to be placed in my physical case file is a page on which I have detailed the investigation’s objectives.

  By articulating and recording the project’s objectives early and placing evidence of them in my case file, I also am laying a defensive foundation against claim of bias and discrimination or some other form of investigative misconduct at the conclusion of the project. In the event of subsequent litigation and discovery, I want the plaintiff to be surprised. I want the plaintiff that has claimed bias, discrimination, targeting, and abuse to sustain an early setback when handed documents that demonstrate, from the start of my investigation, that my intentions (and that of my client) were pure, honest, and reasonable. Practical experience also has shown that early setbacks for plaintiffs of this type tend to demoralize them. It tends to take some of the wind out of their sails. At the very least, it demonstrates to them, and, most importantly, the trier-of-fact that the defendant is no amateur and an easy victory is not likely. The objectives of almost all workplace investigations articulate the desire to:

  ◾ seek out and identify the true nature and scope of the problem

  ◾ identify who is involved and why

  ◾ gather any and all information in such a fashion as to allow the proper distribution of disciplinary and/or corrective action when appropriate

  ◾ engineer the process in such a fashion that is least disruptive to the organization and its operations

  ◾ achieve the best possible return on investment9

  This is no small order. However, taking the time to negotiate the objectives of the project in advance saves time and money. Moreover, as you have probably already recognized, the objectives stated above are nearly universal. They are so useful that I sometimes call them the universal objectives. Reflect back for a moment on the last several workplace investigations you conducted or oversaw. Would these objectives have suited each of them? I suspect so. Imagine also the response of the decision makers and customers to whom you report if you had recited these objectives when

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  your last assignment was handed to you. From a practical standpoint, who could

  argue with them? Also, note that these objectives, as I have penned them, speak in the language of business. They demon
strate my appreciation of operations, corporate culture, fairness, and return on investment. They tell my client I understand his business and that I too am a businessperson. I don’t think the objectives of any workplace investigation could be articulated better.

  Several years ago during an arbitration hearing in which a large group of

  employees were challenging their termination, I was called as a witness. The results of my investigation were used as the basis for the terminations. Following the typical questions regarding my background and experience, the attorney representing the employees began to challenge me. The culmination of his folly was to ask why the investigation of each individual appeared so uniformly similar and the results so consistent. I could hardly wait to answer. But, before I tell you my response, consider the title of this chapter; it’s a clue. My answer went something like this:

  “Because I employed a process. My process not only defined my objectives, it permitted each offense and offender to be investigated properly, uniformly, and fairly.

  The result precluded the intrusion of bias, mistreatment, and discrimination. It also produced unequivocal admissions of guilt. Without intimidation or coercion, each of the grievants provided his/her employer and me with a written and oral admission. And, that process, by the way, is called the process of investigation.” As he was probably reminding himself, never ask a question of which you do not know the answer, the now humble attorney’s face changed from an expression of arrogance to grief. To my client’s delight, all 30 of the terminations were subsequently sustained.

  1.4.3 Well-Conceived Strategy

  The next key to success is the development and deployment of a sound investiga-

  tive strategy. There are many different types of issues that may call for a workplace investigation; therefore, I will forego describing strategies for each of them here.

  However, the topic deserves some brief examination at least.