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Wednesday, April 9, 2014

Investigations: Doing One The Right Way

The internal investigation report issued by the international law firm Gibson, Dunn for the Office of New Jersey's Governor on "Bridgegate" has been much criticized for, among other things, its inconsistencies and its overzealous tone that have undermined its credibility and authority. Let's stop criticizing, and talk briefly about what makes a good, sharp, effective investigative report.

First, you have to describe what you are investigating. This requires clarity of thought and clarity of writing. These are surprisingly in short supply.  And business owners and others who end up hiring lawyers to do these internal investigations just have no idea how few lawyers actually are proficient at writing a readable report in English. 

Second, you need to address the limitations of your investigation. There are always limitations. There will be documents you cannot access, witnesses you cannot talk to (and sometimes there are good reasons for this) and then there will be documents and witnesses of which or whom you are not even aware.  These are the unknown unknowns which are often crucial in uncovering the truth.  A good investigator must be honest with himself about the possibility of missing evidence or, even worse, evidence deliberately concealed from him by the wrongdoers on the inside who are pretending (often quite adeptly) to wear the white hats of innocence. A good, credible report addresses these problems.  The evidence and scope of access must be described, the limitations or "dead ends" must be explained, and the reasons why access is denied or otherwise impossible must be addressed. It is important to weigh the credibility of sources, both the people who talk and the evidence that is revealed.  It is important, from both fairness and credibility standpoints, to explain that refusal to talk to investigators may support inferences of "something to hide" as much as they support inferences that the uncooperative source may be appropriately wary of any investigation.  The report needs to address all of these points and potential drawbacks in order to be taken seriously and credibly.  After all, a report that is not viewed as a credible evaluation of a situation or scandal is literally a waste of paper. 

Thirdly, address what conclusions and inferences can be drawn from the available evidence, but address all the possible conclusions. Sometimes the best investigations raise and address a series of new questions rather than "coming to a conclusion."  Although the reader will want to know "whodunit," the best report and most effective report for a corporate client is one which moves towards the truth instead of becoming an unwitting tool of a wrongdoer on the inside.  This is a constant risk and one which is neglected by lawyers who care only about placating the people writing the check to them.

Most crucially, however, is the inclination to keep an open mind.  When there are multiple limitations, it is virtually impossible to come to a conclusion. This is not an hour-long crime drama and the seminal "come to Jesus" confession just will not happen. Anyone expecting this is dangerously naive or intent on paying for and getting the outcome they want.  People with this attitude want the investigation to "bless" their desired story.  A corporate or small business client needs to honestly answer this question: Do you want a real investigation, or do you want a whitewash?

Finally, the most crucial ingredient in a good investigative report is the skill of the people doing it.  By skill, I am talking actual skill, not skill which is presumed or imputed to a lawyer because of their prior experience as prosecutors or regulators.  In fact, some former government lawyers make surprisingly poor investigators!  This is because government lawyers are accustomed to having government power (i.e., the power to subpoena, the power to investigate and the power to prosecute) at their disposal to shake the tree to get the evidence and testimony they need or want. Having power is not the same as having skill.

In addition, the office politics of a government office put a premium on finding targets to go after, and people and cases to resolve. The government regulators and prosecutors are not hired to find the truth; they are hired to process cases.  "Getting to the truth" is this nice-sounding, high-minded ideal.  The reality is far from that. Enforcement agencies often do not have the resources or the patience to go after and develop complex cases (such as the financial fraud allegations against financial institutions where the lack of prosecution has engendered the theory that they are Too Big To Jail).  This is why you should not expect former government lawyers to have the patience, discipline or experience to get to the bottom of cases, not unless you have a limitless budget.

The best investigators, therefore, are not the ones used to using the power.  They are the ones who have uncovered the truth without the benefit of the government's resources and power at their disposal. Sometimes, they are the ones who have been targeted by government regulators or prosecutors, and survived by proving their innocence despite being outgunned.  Those are the ones who have the skill and discipline to do the job. 

If you run a business and need to get to the truth, those people are the ones you should talk with. 

If you want someone to bless your version of events, you don't need an investigation. You are looking for an advocate. Just don't expect your whitewashed version of events to be taken seriously, no matter what you spend. 




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