September 19, 2016 Articles

International Forensic Investigations—Practice Management and Tips

The final piece in a three-part series from the ABA’s White Collar Crime Subcommittee

by Alexander Walther, Robert Gray, Melissa Ho, and Emma Cecil

Note: This is the third of a three-part series of summary articles from the American Bar Association (ABA) White Collar Crime Subcommittee that will address some of the key issues when offering forensic investigation services that arise in providing services to clients with international operations (or who may be considering an international expansion). The first two articles can be found here and here. This article will focus on practice management tips on how to efficiently and effectively perform international investigations, specifically focusing on:

• Pricing considerations,
• Information Technology (IT) considerations,
• Language considerations, and
• Expert/Specialist considerations.

Pricing Considerations
International investigations can be exceedingly difficult to price appropriately. Not only do you have the normal pricing challenges of domestic investigations, you have to consider international travel costs, travel time, specialist costs (e.g., translators, security, experts, etc.), and many others. The key in pricing these matters is to put in the time necessary to scope the project and be proactive with your client. In our experience, breaking the matter into phases or chunks can be a best practice to manage client expectations and costs. By using these “Phase Estimates,” we have been able to resolve cost issues with clients ahead of time and have tempered their expectations so that they do not have sticker shock when they receive their bill. Some might argue that by managing a project this way, you are simply moving an uncomfortable fee conversation from the end of the project to the beginning. This thought process does not consider the positive impact on your client by being transparent and upfront. Chances are your client will appreciate your proactive and thorough approach and will be more likely to hire you again on the next investigation.

IT Considerations
International investigations can lead to a number of IT issues when it comes to transferring documents and data. Not only do local laws govern what types of data can be transferred out of a country, you also may be up against different limitations in technology. For example, on a recent investigation in Australia, Baker Tilly’s team had to transfer a number of large files to the United States through an FTP site. We discovered that the amount of bandwidth available to the Australian party was limited and intermittent. Although the data was eventually uploaded to the site, the process took approximately three times longer than it would have in a domestic investigation. To make matters more interesting, the Baker Tilly team needed to download the files from the FTP site during the yearly NCAA basketball tournament. Due to the number of people streaming the college basketball games, the bandwidth available to download the files in the United States was also impaired. The impact of both of these issues was that it took over a week to transfer the files from Australia to the United States. As we learned, international transfers can run into some unexpected problems overseas as well as domestically. When planning your project timeline, keep in mind these types of logistic issues.

Language Considerations
If you are conducting an international investigation, chances are you will be interviewing individuals whose primary language is not English. Even for those who do speak English, their culture and speaking style could change the meaning of some responses. With the development of technology, there are more options than ever for addressing these language barriers. The method you choose to use to conduct interviews is based on the facts and circumstances of the investigation, but the common approaches now available include:

• Using translator apps,
• Using an actual in-person translator, and
• Conducting the interview in English.

A selection of the pros and cons of each method are summarized in the table below.


Method

Pros

Cons

Translator Apps

• Inexpensive
• User friendly
• Can translate in near real time
• Available on most smart phones
• Can handle verbal and written communication
• Not 100 percent accurate
• Struggles with local accents / slang terms
• Does not pick up on cultural / non-verbal communication
• Many require an internet connection

In-Person Native Translator

• Interview style can be adjusted on the fly
• Cultural issues and non-verbal communication can be addressed
• Easier to deviate from scripts
• Translates in real time
• Typically the most expensive option
• Need to vet people and retain someone outside of the firm
• Upfront work to prepare the interviewer (in addition to your normal preparation time)

English Interview

• You conduct the interview
• More comfortable for the interviewer
• Most similar to domestic projects
• Cost efficient (only your team’s typical time and no additional expenses)
• Interviewee may be less fluent than they believe (misunderstanding of questions)
• May not pick up on cultural differences (unless you are familiar with and work regularly with the culture)
• Difficulty understanding the response

In the end, the right path depends on the facts and circumstances of the particular investigation. Weigh the pros and cons of each method when determining how to best conduct the interview.

Expert/Specialist Considerations
The proper use of experts or specialists can be instrumental in conducting an investigation. The key is using a specialist or expert who is knowledgeable about the subject matter at issue. For example, in accounting, many countries have their own form of generally accepted accounting principles (GAAP). The United States has US GAAP, countries in Europe each have International Financial Reporting Standards (IFRS), China has its own GAAP, and Australia has its own particular flavor of IFRS. Although there are similarities among each form of GAAP, they all have their own unique attributes. As such, your go-to specialist on US GAAP might not be the right person for your team. You would likely be better off utilizing an expert or specialist in the subject matter. It never hurts to ask though, as your go-to contact may have a connection.

The same holds true for other areas, such as valuations, tax issues, economic issues, legal issues, and foreign laws. The main thing to keep in mind is that you want to get the right people and not just those to whom you are accustomed or with whom you are comfortable.

Concluding Remarks
To recap the article series, there are many areas to consider that normally would not come up in your typical domestic investigation. Keep in mind local laws and regulations that could limit your ability to perform the kind of in-depth analyses you perform domestically as well as cultural and administrative issues that need to be considered. Keeping these areas in mind will assist in conducting a successful international investigation and improve your chances of reaching the best outcome for your client given the facts and circumstances of the matter.

Keywords: commercial and business, litigation, international investigation, corporate investigation, forensic analysis, U.S. vs international investigation, culture differences  


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