The Horton Report

Current Issue #7
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If I told you the quickest way to win the undying respect and admiration of your organization's legal counsel is for you to conduct a company investigation you would probably tell me I'm crazy, especially if you've done one before. You're probably saying to yourself, "Any time I do an investigation corporate counsel should get down on their knees and kiss the ground I walk on because they didn't have to do it." And you're right!

Investigations are horrible for one big reason-it's practically impossible to know who is telling the truth. As if the investigations aren't bad enough, some may result in you being cross-examined by an employee's attorney two years later about why you believed the people you say you believed. Because you never know which investigation will result in that kind of cross-examination I'm going to outline a process you can use in every investigation to decide who is telling the truth.

My first piece of advice is, go easy on yourself. In over 25 years trying employment law cases and interviewing thousands of witnesses, I was never "positive" who was telling the truth. And I knew the judges and juries could not tell either, but they had to make a decision. How did they do it?

Every court in the United States gives juries a written set of criteria to determine who to believe. All courts use essentially the same criteria which provide a multi-factor analysis to get to the truth. The next time you conduct an investigation, you can use the same factors judges and juries use:

1. Will a witness gain or lose if you decide things a certain way?
2. What is the witness's relationship to the parties?
3. How did a witness learn the facts? How does he or she know, remember, and tell the facts?
4. What is his or her manner and appearance?
5. What is his or her age and experience? [Did he really say Age? Yes, it's okay to use age in this case.]
6. Does the witness seem honest and sincere?
7. Is the witness frank and direct?
8. Is what the witness is saying reasonable compared with other evidence?
9. Are there any other factors that bear on believability and the weight you will give to what the person has said?
10. In addition, you should rely on your own experience, good judgment, and common sense.
11. If you apply these same criteria to your determination you may still be wrong, just like juries and judges sometimes conclude wrongly. However, any jury you may have to face will know you had a tough job because it is the same one they have been called to do. You also stand to gain tremendous credibility with them if you used the same factors the judge has told them they should use.

A word of caution. You may run into corporate counsel who does not want you to use these factors. Some attorneys want their witnesses to give vague answers. I have a huge problem with that approach and you should, too. Here's why. If you get on the witness stand and tell the jury, "I can't tell you why I believed so and so, I just did, you had to be there," you will look stupid. Guess what? You're not stupid and the jury knows you wouldn't have the position you do if you were. If the jury thinks you're trying to look stupid, they may assume you have something to hide. Why is that important? Because in deciding whom to believe the jury applies the same factors I just listed to your testimony! Look at numbers 6 and 7. "Did the witness seem honest and sincere?" "Was the witness frank and direct?" If the jury believes you are not honest and sincere, frank and direct it will go very badly for you and your case every time. I guarantee it.
Rule: When doing investigations use the same written criteria/factors judges and juries use to determine who is telling the truth.
No one can determine who is telling the truth with "absolute certainty." All you can do is put into place a process that gives you the best shot at it. It will make your job infinitely easier and increase the likelihood you have made a correct decision.

In the next issue of The Horton Report, I'll show you how to use the criteria in this process for report writing. You'll also learn why you should write a report on every investigation and learn how to do that quickly and easily with the format I'm going to give you.