10 Best Practices for Effective Investigations, Part 1

  2. Build your timeline as early as possible 

One of the most helpful tools in the investigator’s arsenal is the humble chronology. It is particularly valuable in the more complex, gnarly cases. You KNOW the ones I’m talking about. Creating a chronology, or chron for short, is straightforward. Review documentation and interview notes to form a timeline of relevant events and conversations. Note what evidence supports the happenings so that credibility is weighted appropriately and documented fact is differentiated from a witness account for example. 

It is incredible how the narrative falls together and obvious questions/gaps start to form once you can see what happened and when very precisely. On paper, the sequencing and time periods are much clearer than what even the most intelligent investigator is hearing and piecing together along the way.  

Pro tip: Taking a first cut at creating the chronology by pulling events from documentation and later interview notes, is a really great teaching opportunity for junior members of the team to sink their teeth into investigation work and takes a load off the lead investigator to focus on strategy and conducting interviews. 

  3. Focus on facts before conclusions 

I know, I know, this one seems obvious, but sometimes it’s easier said than done. How many times have you seen colleagues (not you, of course, you are flawless) jump to conclusions while reading an allegation or looking for facts that will satisfy confirmation bias rather than simply looking to learn what happened? 

One of the ways to avoid this is by doing the objective exercise of creating the chronology document discussed above. Another approach is to incorporate Just Culture prompts in your investigation materials. This might look like a minimum requirement in investigation documentation to include noting any systemic contributors (versus individual behavior) that may be relevant, approaching interviews as fact finding missions, reminding investigators to check themselves for bias and where appropriate reminding investigators that this is a learning opportunity for the organization, not a punitive exercise by default.  

Some coaching questions for investigators to refer back to and ask of themselves that are helpful to adhere to this best practice can be:  

• What explanations are plausible? 
• What evidence supports each explanation? 
• What evidence contradicts each explanation? 
• What evidence is ambiguous? 

Pro tip: Establish a regular peer-review exercise for investigators to review each other’s investigation record-keeping and provide supportive, psychologically safe feedback to the team as a collective to improve. The knowledge that our work may be reviewed is an apt way to ensure the documented information supports the conclusion. If you don’t work in a large team of Ethics and Compliance investigators, you can still conduct this exercise with HR investigators, internal audit or other governance and assurance functions. 

  4. Communicate consistently throughout the investigation 

Even if you have a practice of not providing much in the way of updates or informing reporters of findings and the outcome of the investigation, there are opportunities to help instill trust in the process. One of the critical timeframes for this that I encourage all Compliance departments to take advantage of is before any investigation occurs.   

Take the opportunity to set expectations in advance about what the reporter can and can’t expect. I’ve seen one company do this by way of their Code of Conduct and set out promises to reporters there. You don’t get much more transparent than a publicly available document.  

I like to do it in open sessions, demystifying the investigation process for colleagues, because I think transparency in the investigation process helps engender organizational trust. On this topic you might include a frequently asked question along the lines of: “If I’ve made a report, the investigators have to follow my instructions and give me a full debrief on how the investigation went and what disciplinary action was taken, right?”   

Then, you’ll need to address that belief with a response such as, “I know this may not be the news you were hoping to hear, but there is not an inherent right to being involved in the investigation process, given a blow-by-blow account of what the investigation team did, or the outcome of the investigation. Confidentiality is an important value that we adhere to in investigations, and while we are appreciative of tip-offs to identify misconduct, neither reporters nor their supervisors should expect a starring role beyond helping with questions if asked.” 

Though you may not share the outcome with the investigator at the end of the process, you may wish to consider a practice of reaching out at the close of the investigation to seek feedback from the reporter about their experience and opportunities for the Compliance team to improve the speak up process, including asking a question along the lines of: if you were to observe misconduct in the future, would you report it? 

Pro tip: Staying in touch with the reporter periodically and learning about their advancement and success in the company for a period of a couple of years after the investigation to monitor for “long-term” retaliation is another best practice to deploy. 

  5. Look beyond the individual incident to identify patterns 

Given that we often use the same control framework enterprise-wide, misconduct that occurs in one area of the business often highlights weaknesses across the board. To illustrate this with an example from the Foreign Corrupt Practices Act space, I invite you to turn your mind to an FCPA enforcement action which highlighted four different improper inducement schemes in four different areas of the world. If an issue can happen in one country or sector of your organization, what’s stopping it from happening elsewhere?  

Making root cause analysis a standard part of your investigation process helps the investigator keep a view to a wider mindset about addressing the systemic or structural vulnerabilities that existed for the misconduct to take place.  

Pro tip: Not every member of your investigation team will have received formal training into root cause analysis. In fact, I would hazard a guess that the majority of them have not. There can be value in creating a step-by-step root cause analysis guide for colleagues to apply. There are multiple root cause analysis methods that can be utilized by Ethics and Compliance investigation teams. Identify a few that you particularly like and show your team how to work through them with examples.  

Make sure you look for part two in this two-part series for five more investigations best practices!