Introduction: The Hardest Part Comes Last
In my years as an investigator, I’ve seen countless colleagues breathe a sigh of relief when the last interview ends. It’s a classic mistake. They think the hard part is over. But if you’ve ever sat down, surrounded by a mountain of notes, facing the daunting task of turning hours of conflicting accounts into a coherent, defensible report, you know the truth. The real challenge, and the most critical work, begins now. Making sense of conflicting reports, weighing contradictory evidence, and documenting your findings is where an investigation’s integrity is truly forged. The analysis and writing phase isn’t just the final step; it’s the crucible where raw information is transformed into a clear, logical, and defensible conclusion.
1. You’re a Fact-Finder, not the Judge and Jury
One of the most counter-intuitive principles for a new investigator is this: your job is not to “catch liars” based on their demeanor. While assessing credibility is a central function of your role, relying on visual cues like fidgeting or lack of eye contact is a common and dangerous pitfall. Consider whether there are cultural differences at play, and be curious about your own unconscious biases.
Despite what popular culture suggests, even trained professionals are poor at detecting deception from body language alone. A well-known study by Ekman and O’Sullivan found that Secret Service agents, experts in observation, were only able to detect lies 64% of the time, barely better than a coin toss. What might look like dishonesty could just as easily be nervousness, anxiety about the process, or a cultural difference. For example, while North American culture often equates direct eye contact with honesty, in other cultures looking someone directly in the eye is considered rude. A credible assessment isn’t based on a “gut feeling” but on a methodical review of all available evidence.
2. Witness Memory Is Fleeting
Investigators often treat witness memory as if it were a fixed recording of events that can be perfectly replayed. This is a fundamental misunderstanding of how memory works. Memory is not a video camera; it’s a reconstructive process that is highly susceptible to change.
Every time a witness recalls an event, their memory can be subtly altered. It is vulnerable to contamination from “post-event information,” such as conversations with other witnesses, a phenomenon known as “memory conformity”, or even leading questions from an investigator. Furthermore, trauma has a profound and predictable impact on memory. When the brain senses a threat, the amygdala triggers a flood of stress hormones like cortisol. These hormones actively impair the hippocampus, the part of the brain responsible for organizing events into a linear, chronological sequence. As a result, a person may vividly recall central, survival-focused details while peripheral details, like the sequence of events or the layout of a room, become fragmented or are lost entirely. This can lead to statements that seem inconsistent but are, in fact, a normal neurobiological response to a terrifying experience. Memory is like a Wikipedia page: “you can go in and change it, but so can others.”
3. “He Said, She Said” Is Not a Dead End
As an investigator I am often asked by instructing clients, “what can I do when it’s just one person’s word against another?” This is the scenario that gives new investigators the most anxiety, but my answer is always the same: “This is where your job truly begins.” It is your primary responsibility to make a determination in these exact scenarios. Do not avoid a finding because there are two conflicting versions of events.
The absence of a “smoking gun” like a video or an email does not mean a conclusion cannot be reached. Your task is to weigh the competing accounts by analyzing a range of credibility factors. Start with corroboration, the gold standard, or the lack thereof. Then, consider the inherent plausibility of each account, any potential motive to falsify, and the internal consistency of each person’s statements. The goal is not to achieve absolute certainty, but to determine which account is more likely true based on the “preponderance of the evidence”, a standard that simply means “more likely than not,” or as some say, “50% plus a feather.” The process of weighing these factors is the core of your analytical work, which must be transparently explained in your final report.
Resolution of close factual questions requires difficult evaluations of witness credibility and hard choices among conflicting inferences.
4. The Report’s Job Isn’t to Summarize, It’s to Explain “Why”
A report that merely summarizes who said what is an incomplete and ultimately indefensible document. The most critical part of any investigation report is the analysis, the section where you must meticulously show your work.
Your reader, whether it’s an HR leader, legal counsel, or a judge, needs to understand the logical path you took to get from the evidence to your findings. Your analysis must logically and persuasively explain why you found one version of events to be more credible than another. This means applying the credibility factors from the previous section and accounting for the principles of memory and demeanor discussed earlier. You must directly address contradictory evidence and explain why certain facts or statements were given more weight than others. Without a clear and well-reasoned analysis, your findings are merely opinions.
It is not enough to simply say that the investigator prefers one version of events over another, there should be rationale as to why one person’s testimony is preferred over another.
5. Your Investigation Doesn’t Have to Be Perfect, But It Must Be in Good Faith
Many investigators, especially those new to the field, feel an immense pressure to be perfect. They worry that a single missed question will render their entire investigation invalid. This anxiety, while understandable, is based on a misunderstanding of the legal standard. This isn’t just a theory; it’s a standard reinforced in legal and arbitral decisions.
Courts and adjudicators do not demand perfection. They require a process that is prompt, thorough, impartial, and conducted in good faith. The key is to demonstrate that you conducted a fair process and reached a reasoned conclusion based on the evidence available to you. Even if an investigation has some minor flaws, it will likely be considered defensible as long as the core principles of fairness and good faith were met.
Investigators are not held to the standard of perfection, but instead must only act in good faith. Even if some deficiencies exist, this will not automatically result in a finding that an employer has not met its duty to investigate.
Final Report Writing: Be the Architect of Clarity
Mastering the art of writing a strong investigation report is less about being a detective and more about being a thoughtful analyst and a clear, precise communicator. By embracing these truths, you move beyond being a simple collector of facts and become the person who builds the bridge from conflicting evidence to a clear, defensible conclusion. The next time you close an investigation, ask yourself: will your report simply state what happened, or will it build a clear and compelling case for why your findings are the most reasonable conclusion?
We offer our services to our colleagues, fellow lawyers and investigators to consult and to act as fractional review counsel and peer review final reports. We are often engaged to review entire reports, just the analysis and findings or to advise on a specific issue. There are complicated legal and ethical issues that can arise once you have reached the end of an investigation and you may want to have an outside view on the findings to ensure they withstand scrutiny. We can be engaged to consult investigators at any stage of the process. If this need arises, please do not hesitate to reach out.
