I am often asked whether we serve as expert witnesses related to workplace investigation lawsuits. The lawyerly answer I give is, “It depends.” Our office, Oppenheimer Investigations Group, is dedicated to doing impartial workplace and school investigations. We are highly skilled in this niche area of the law, and we take any case that comes our way, so long as our client understands that we will do truly impartial factfinding. We have no investment in the outcome of the investigation; we call balls and strikes as we see them.
Accepting an engagement as an expert witness for a case brings a different set of challenges. In these cases, we are being hired by either the plaintiff or the defense because they believe we will be able to help their case in some way. This alignment with a “side” means we need to carefully screen prospective cases. Unlike investigations, we turn away a fair amount expert witness work since, in many instances, we are not confident that our opinions will be both relevant and helpful to that party’s point of view. The cases where we evaluate that our opinion will be helpful can be extremely gratifying.
In one such case that recently went to trial, I was engaged as an expert witness for the plaintiff. I had accepted the case in 2017, which is when I initially reviewed the evidence, wrote a report for federal court, and was deposed. Seven years later, I wondered if I would regret having taken the case or if my opinion would hold up after the passage of so much time. Luckily it was the latter. I saw that I had vetted the case to ensure my testimony would be relevant—it was focused on the investigation used to make a decision to terminate the plaintiff. And I saw that in my second review, seven years later, the investigation itself was deeply problematic. It did not meet the smell test.
Preparing for this type of testimony, we typically look at three primary areas in evaluating an investigation. First, was the investigator herself an appropriate person to do the investigation? In determining this, we look at whether they had the requisite training and skill to do an investigation and whether they had any biases that would impact fairness. In the case at hand, the supervisor did the investigation (usually a bad idea), she did have an apparent bias against the plaintiff, and she did not have the training and skills to do an impartial workplace investigation.
Second, we look at whether the investigation was conducted in a reasonably fair and thorough way, consistent with appropriate HR practices relating to investigations. This includes whether relevant witnesses were questioned and relevant documents reviewed and whether there was an accurate recording, transcript or notes of what parties and witnesses said. In this recent case, the investigator did not obtain an accurate record of what witnesses said and did not keep her notes (a very poor practice). She also did not give witnesses an opportunity to speak to the issues she was investigating—another very poor practice.
Lastly, we look into whether the findings were consistent with the evidence. Of course, it is only possible to make this analysis when the investigator has gathered the relevant evidence and kept it so it could be reviewed. Not the case here.
In this case, the jury decided in favor of the plaintiff and awarded her $8.7 million. It’s hard to know how much my testimony impacted that, but it surely didn’t hurt.
I find it gratifying to testify in cases where the standards related to fair and thorough investigations are not met. It helps educate the public on what an investigation should look like. I equally enjoy testifying in a case where the standards are met. No investigation is perfect and educating the public on what a reasonable investigation looks like is as important as educating the public on why a particular investigation did not meet standard.
Critics can be persuasive, but they are not always right. It is often easier to attack something than support it. The job of an expert is not to simply find everything that could have been done better or differently, but to evaluate the impact on the outcome of the investigation. Perhaps the investigator did harbor some bias, but were they able to set that bias aside and be fair? Perhaps they met the standard of a fair and thorough investigation regardless of the bias. Or maybe the investigator failed to interview a witness. Was that witness critical to the outcome and would the investigator have reasonably known the importance of the witness’s statements at the time the investigation was conducted?
As professionals in the investigations field, we hold ourselves to a high standard. But perfect can be the enemy of good. A “perfect” investigation may be unreasonably long (and would not meet the timeliness standard) or be unreasonably expensive (a $100k investigation for every claimed workplace infraction would put most employers out of business). For purposes of evaluating and testifying about an investigation, I don’t necessarily expect it to meet the same level of thoroughness we expect for ourselves at our office. But I do expect it to meet the reasonable professional standards raised by Cotran and Silva.
Amy Oppenheimer is the founding partner of Oppenheimer Investigations Group, an investigations law firm that specializes in impartial workplace and school investigations, coaching and trainings, conflict resolution and mediation and expert testimony services. She can be reached at [email protected].