No Written Report? No Problem
Workplace investigators are accustomed to writing. 50-page report? 75-page report? Not a problem. Writing detailed, comprehensive investigative reports is what we do. On the other hand, workplace investigators are less accustomed to providing findings to clients without a report — commonly referred to in our industry as “verbal findings” or “oral debriefs.”
In the wake of COVD-19, many employers are still reeling from the economic impacts of the pandemic. In this climate, do not be surprised if your next client seeks to save time and money by asking you to provide verbal findings in lieu of, or in addition to, a written report. Also, a client may already have a thorough understanding of the facts that sparked the investigation, and merely needs an investigator to provide the ultimate findings.
This blog post provides practical tips for the investigator tasked with providing verbal findings at the conclusion of a workplace investigation.
What makes this kind of investigation unique? The way the findings are delivered to the client is the main differentiating factor. Investigators cannot cut any corners during the investigative process simply because a full report will not be authored. In other words, manage these investigations the same way you would any other.
How do I memorialize my investigative work without a written report? Even with verbal findings, there will be some written documentation. Investigators must find ways to document their investigative efforts without writing a report. This should be done by creating internal notes and memoranda that will be saved in the investigative file. Importantly, the methodology should be memorialized. Keep these items in mind:
Memorialize the scope of the investigation. Document when the client retained you, describe what prompted the investigation, and delineate what you were tasked with investigating. At times, saving the initial email communications between you and the client will suffice.
Keep detailed notes of your attempts to schedule party and witness interviews. If a party or witness elects not to participate in the investigation, be sure the decision is documented in an email or in dated notes and saved in the investigative file. Any issues related to the investigative process — for example, attempts to obtain documentary evidence or attempts to obtain the party’s proposed witnesses — should be documented close in time to when they occur and saved in the investigative file.
All interviews should be preserved, either through note-taking, recording, or some other method. This must be done in a consistent fashion for all interviews. In addition, consider creating a chart delineating the dates of all interviews, the names and job titles of all interviewees, and whether the interviews were done in-person, by videoconference, or otherwise.
Save all documents utilized and relied upon in the investigation. When files are provided electronically, label them accurately. Consider whether it is also important to summarize or describe documents further. For instance, if the chronology of events in an investigation is crucial, consider creating a timeline that outlines all important dates and references all supporting documents, such as emails and text messages.
How do I provide the findings to the client? Delivering verbal findings to a client possesses challenges. It should be done in two steps:
First, before conferencing with the client, create detailed notes — typically in bullet-point fashion — that you will use as a guide when delivering the findings. This document should be saved in the investigative file, so write it formally and professionally. It will be the closest thing to an investigative report you create. It is also important to place labels on the notes differentiating them from a formal investigative report. For instance, it is advisable to include a header or footer and note, “Attorney Client Privileged — Internal Investigator Notes For Verbal Report Only And Not For Distribution.”
Second, using your detailed interview notes as a guide, confer with the client and describe the key aspects of the investigation. Depending on the level of detail the client desires, consider covering these four topics:
Remind the client about the scope of the investigation. Be precise and clear so the client knows what is in dispute and what your findings will address.
Explain the investigative methodology. Specifically, tell the client how many interviews you conducted in total, including any relevant follow-up interviews. When appropriate, explain whether witnesses elected not to participate in the process or why certain witnesses were not interviewed. Summarize the documentary evidence you obtained over the course of the investigation, for example, text messages, emails, performance reviews, statistical information, or other relevant material. If appropriate, describe which documents impacted your findings the most. Be prepared to talk about your investigative decision-making process, such as how obstacles were overcome and why you decided to collect the information relied upon.
Summarize the most relevant factual background. This helps provide context to your findings. For instance, consider providing a brief overview of the key parties, the workplace’s organizational structure or hierarchy, the chronology of key events, and what prompted the Complainant to come forward with their allegations.
Describe your findings. Start by providing a high-level summary to the client — were the allegations sustained or not sustained? Be prepared to go into more detail depending on the level of specificity requested by the client. More often than not, the client will want to know whether you made credibility determinations, and what kind of evidence you found most persuasive. Depending on the level of detail the client desires, be prepared to walk through your credibility determinations, describing how you analyzed the facts using factors such as: direct and indirect corroboration, lack of corroboration, inherent plausibility, material omission, motive to falsify, consistent or inconsistent statements, past record, reputation, comparator information, relevant statistics, and articulated rationales for the Respondent’s decisions.
Workplace investigators unaccustomed to providing verbal findings may be understandably wary of the task — it is not an easy thing to do. Follow these tips to ease your anxiety and deliver the results the client deserves.
Matthew Rose is an Associate Attorney with Van Dermyden Maddux Law Corporation. His practice focuses on conducting workplace and Title IX campus investigations.
The foregoing is for informational purposes only and is not legal advice, nor should it be construed as such.
