Criteria for Evaluating Your External Title IX Investigation Provider

By: Brett A. Sokolow, J.D., Chair, TNG

Dear Brett:

My school needs an external civil rights investigation. We received quotes from a number of firms, and the per-hour cost varied by more than $200 over the various provider quotes. Can you help us understand why there is so much variability in the hourly price range?

Dear School:

Thanks for asking. Over the last ten years, more and more colleges and schools have been outsourcing investigations. Some go with local providers, others with those recommended by their legal counsel, while still others choose firms of national reach and reputation. For a number of years, there was a race to the bottom in pricing, especially for those who had newly hung out shingles as Title IX investigators. There were places where you could find $100 per hour investigations. Most of those providers did not survive, or the schools that engaged them found their work product lacking. Now, garden variety case investigation pricing seems to have settled into the $250-$450 per hour range, though top experts for the most complex cases can easily command $750-$1,250 per hour in certain metropolitan areas.

Here are some considerations as you evaluate your options in that $250-$450 an hour range:

  • Are you looking for a competent fact-gatherer, or more? A solid gatherer with competent writing skills in all areas but major cities should be about $250 per hour. 
  • If you are looking for your investigator to do more, such as synthesis, analysis, assessment, or even recommended findings, you’re probably heading closer to $300, or $350 in metropolitan areas. This will also be true if the investigation involves patterns of misconduct and/or predatory behavior.
  • If you want someone who can also give competent testimony in a school or campus hearing, and who understands how a Title IX hearing or other hearing on a discrimination complaint works, you’re looking at $300 per hour and up. If you want an investigator who understands First Amendment implications related to off-campus harassment, or who knows how to assess claims of academic freedom by a faculty member respondent, that’s going to be nearer $400.
  • If you have a need to engage an attorney for the investigation, and/or someone who has a strong level of subject matter expertise on the policies being evaluated and the nature of the alleged misconduct – especially someone who is skilled at trauma-informed investigation practices, you’re likely going to be in the $400 per hour range, even $450 in metropolitan areas.

As you evaluate your external investigation firm options, you should look at more than the hourly rate that is quoted. A firm that charges half as much but takes twice as long is not a cost savings, of course. Here are some additional considerations that can inform your choice:

  • Does the firm have a deep bench? If the investigator you choose gets sick, is conflicted out, accused of bias, or is otherwise unable to complete the investigation, are there others in the firm who can take over where they left off? Is there a supervisor in place you can trust to manage the transition smoothly and efficiently?
  • Can the firm offer you a team investigation of more than one investigator, if needed? Sometimes, they’ll say yes, but if the other investigator(s) is busy with a case, they’ll be giving yours short shrift and fitting it in around other work. You want to be their top priority, so choosing the lowest-cost provider may be something you come to regret. If the scope of the investigation expands once it commences, can the firm increase the number of providers you may need as the scale of the investigation expands?
  • Any reputable firm should be able to show you a redacted sample report written by the investigator who will be assigned to your school. You should ask for one, and then compare it to the work product of a firm like TNG. You’d be shocked at how many investigators cannot write a decent report.
  • Does the firm use the same person to investigate, write, and present testimony at the hearing? For example, in our investigation practice when a client prefers it, we have the same person conduct questioning and give hearing testimony, but the report is often written by a trained investigator who is able to work at an hourly rate that is a fraction of the hourly rate of the lead investigator who conducts the questioning. This blended rate approach means that while our hourly rate may be on the higher side, the overall cost of the investigation can be lower than a firm charging $250 per hour for all aspects of the investigation. We have clients that want the same investigator to do all the work, and we can always accommodate that. No matter what, the lead investigator should always oversee the report and reviews it for completeness, no matter who does the writing.
  • How many layers of oversight will be you getting with your contract? TNG offers a supervising attorney to review all work product, whether the investigator from our bench is an attorney or not. Our clients deeply value this service, because having input from an attorney who understands the litigation in the field can help to ensure that the report is a credit to the client that minimizes the client’s potential exposure to liability.
  • Does the firm custom-write every report, or can it offer templates to work from? As an example, we offer our clients two options. In one, we custom write their report and charge accordingly. But, we also offer the option for us to draw from our bank of more than 1,000 investigation reports we have written already. If we can re-use template language from another similar investigation, we can save our client thousands of dollars in billing.
  • There is value in choosing a firm that has done a high-volume of investigations, not just because of the ability to draw from template reports to save time, but because when skilled investigators know what they are looking for, and have seen the patterns of cases before, their total hours on a complaint are likely to be at least a third fewer than a less experienced firm investigating the same type of complaint. While the hourly rate may be higher, if the total hours are only two-thirds of what it will take a less experienced firm, the costs balance out. Ask whichever firm you are hiring how many cases like yours they have handled, and specifically, how many similar cases the investigators they are assigning to your case have done. Our answer to that question is usually that we have investigated at least fifty similar cases.
  • Ensure in your contract that the same investigator who investigates your case will be available to testify at your hearing. Sometimes there is a month or more between the completion of the investigation and the scheduling of the hearing. With a smaller firm, your investigator may have moved on, be working on another case, and be unable to attend the hearing. That can be a disaster. Again, with a bench like TNG’s, we are always able to attend the hearing. In fact, our investigators have a clause in their contracts with us that even if they leave our employ, they are still obligated to come back for any hearings that are outstanding on investigations they have done.
  • If you are engaging a firm for a complex investigation, try to determine if the complexity or scale is something they have encountered before. If the firm is going to be building a mass-scale investigation capability on your dime, it will cost far more than it will for a firm that is already accustomed to managing complex or mass-scale investigations. An experienced firm will already deploy infrastructure to support complex investigations, including:
    • having a database already in place;
    • will have workflows established;
    • will know how to regularly coordinate investigation team members to same-page them;
    • will have secure data-sharing protocols;
    • will have a conflict of interest tracking system;
    • will have online and anonymous reporting mechanisms already set up;
    • will have an in-house IT department focused on the tech implications of sophisticated investigations;
    • will have well-developed confidentiality and privacy protection protocols in operation, that have been tested successfully.

If you suddenly need 20 investigators, on-site, in a hurry, what will they do when they arrive? Will they be coordinated, have clear oversight, have an appointed liaison for all investigation communications with the client, provide a skilled crisis communications point person to support the in-house comms staff, have protocols to line up interviews, triage witness priorities, and effectively keep records in alignment with institutional policies and procedures? That’s a fairly massive undertaking for any firm. Make sure the firm you select has its ducks in a row.

  • In any mass-scale investigation (one with many complainants and/or many respondents), ask whether all investigators are employees of the firm or accustomed to working with it. Many firms farm out to other firms, and while that may not be fatal, the depth of the bench offered to you is something you have a right to ask about. We have heard so many stories of firms who bid the job and then go out and hire the team once they win the bid. You want to avoid that.
  • There are very few firms that can tell you that they can deploy fifty civil rights investigators who are licensed, who are trained and certified in civil rights work, who are experienced, and who understand the standard operating protocol of a mass-scale investigation. TNG can. Even many large law firms have just a handful of people who know civil rights or Title IX, and then they borrow others from their financial crimes unit, their corporate fraud unit, etc. They may be able to offer a deep bench, but the expertise is often quite shallow. Ask about this before you decide which firm to hire.
  • Ask the firm you are thinking of engaging about whether they have been sued, whether their work product has ever been challenged, and if so, how they fared. You may prefer to engage a firm that has been battle-tested, and whose work product has survived a legal challenge. Have the challenges to the firm’s previous work created a reputation issue? Will bringing them in reassure your community, or wind up being a distraction that will undermine community confidence in the competence, independence, and/or fairness of your chosen provider? Check references and Google them.
  • Clarify whether the firm has a conflict of interest. Many colleges and schools feel comfortable with their trusted external law firms, but those firms should know that if they are doing significant business with the college or school, the investigation needs to go to a neutral, third-party. Asking your lawyers to recommend a reputable firm may be a useful way to find the right provider.
  • We’re often asked by schools and even their attorneys whether we are able to provide privileged investigations. While the answer is yes for some types of investigations as work product, TNG won’t privilege civil rights investigations. If you are looking to engage an investigation firm, you should not ask any firm you are considering to do so. You need the investigators to provide an independent and objective review. They are not your lawyers, who owe you a duty of zealous advocacy. Your investigators need to follow the evidence, wherever it goes, and their loyalty needs to be to the integrity of the process they conduct.
  • If you really need the top-of-the-top, ask if the firm has any investigators who have been forensically qualified as experts on investigation in the courts. Those who are qualified to evaluate and testify on the work product of other investigators are rare, and the kind of people we make it a point to recruit to our TNG Investigations division.

We’re one of the firms that are called upon when an organization’s initial investigation doesn’t measure up. We forensically assess the work of less competent firms and often must provide clean-up that results from cutting corners, trying to save money, or bringing in a firm that doesn’t have the requisite expertise or bench depth. While we don’t mind mopping up, it’s better for everyone to engage the right firm from the start.

Asking the kinds of questions outlined above can help you to make the right choice for your external investigation needs. Or, just call us first.

Click here to learn more about TNG’s external investigation consulting services. You can also visit this link to learn more about the best-in-class Title IX Investigation training offered by ATIXA.