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Investigations

I had the opportunity back in April to attend a two-day course on investigations that Michael Johnson of the Clear Law Institute offers.  Mike used to be a DOJ lawyer, and to tell you the truth, part of me was dreading this course.  Here’s the syllogism that drove this fear:  (a) all lawyers are litigators; (b) all litigators are good at presenting and public speaking; therefore all lawyers are good at presenting and public speaking.  Most of us know that (a) is untrue.  Unfortunately, if you’ve ever been to a conference where lawyers are presenting or facilitating a session, you also know that (b) is wildly untrue.

In any event, if you have the chance to attend this course, I highly recommend it.  Aside from learning some great new things, the session confirmed something for me.  In the context of investigations, there is a misalignment between what they are supposed to accomplish and how they’re used.  Internal investigations are supposed to ferret out the truth, whatever that might be.  The advantage of knowing the whole truth is that companies can then make sound, fact-based decisions on how to proceed.  The way internal investigations tend to be used (and why there’s a market for Mike’s class) is as a method to protect the company from future litigation.

The misalignment matters.  It’s the difference between (a) approaching an employee in a non-threatening way with the goal of collaboration and full understanding and (b) approaching an employee in an official capacity with the goal of making sure we can counter or explain everything s/he might say.  It’s the difference between having a culture where employees trust Legal and Compliance & Ethics (C&E) or one where employees view Legal and C&E as the enemy.  It’s the difference between finding out about problems when they are small or finding out problems because the Wall Street Journal is about to break a story about your company.

It’s also the difference between the legal department and the C&E department, and why where C&E sits matters.  Donna Boehme of Compliance Strategists, published an article on the importance of separating C&E and Legal in which she pointed out that, “Legal has one client, the company, and its mandate is to advise and protect that client.  Compliance, on the other hand, is tasked with detecting and preventing misconduct.”

The people in the investigations class who seemed to struggle the most during the role plays were the hard-core lawyers and, surprisingly, some of the folks in HR.  The hard-core lawyers approached the mock investigation as if it were a deposition, with a list of prepared yes/no questions.  The folks in HR went into one of our mock investigations automatically assuming that an employee with a performance problem was making up the fact that her boss sexually harassed her.  Neither set of folks went in with open minds, not out of any bad intent, but because that’s how they’ve been trained.

Whoever you select to do your investigations, whether from Legal, HR, C&E, or someone else outside the company, make sure you find someone with excellent listening skills and the comfort level and confidence to hear the full truth.  Your company can only benefit from having all the facts rather than a pre-curated subset.

 

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