OVERVIEW: BUSINESS INTELLIGENCE AND INVESTIGATIONS
Business intelligence and investigations officially takes its place in Chambers’ pantheon of litigation support, and little wonder. Disputes today are more international and more diabolic. This is an era where a US$50 billion award is not only conceivable, it’s history. With stakes that high, every possible advantage has to be on the table.
And yet this does not explain why Chambers is for the first time ranking investigators. The investigative industry has been supporting litigators for forty years. During that time it has evolved and, along with it, its tools and resources. But the introduction of the category signals a more seismic shift.
Litigation has transformed from a sunk cost into a cash generating business. Look no further than the surge of third-party funding. Global dispute centres are awash in funders – banks, hedge funds, intrepid individuals – seeking opportunities to invest. With the freedom to cherry pick lower-risk claims, some funders have claimed success rates as high as 80-90%.
Never mind that such statistics cannot be replicated in complex disputes, consultants love a gold rush. The advent of the litigation business has created a carnival atmosphere complete with snake oil salesmen, sideshows and theatrics. Ten years ago a few well-known annual fraud conferences attracted hundreds of people. Now there are dozens of conferences and workshops on fraud, asset recovery and enforcement around the world attended by thousands. Dealers in one-click solutions, AI and the more familiar ‘cloak and dagger’ fill these events.
To an outsider this can be bewildering. The term ‘Business Intelligence’ itself is a Rorschach test. LinkedIn’s inelegant ‘Security and Investigations’ category is no more illuminating, two services which have virtually nothing in common. We invent terms like ‘Dispute Consulting’ but without an agreed lexicon they are co-opted by accountants and document processors. In many ways it is a youthful sector without a clear identity.
For an investigative community that has grown up on the dependable – and relatively low risk – staples of pre-transactional research and Know-Your-Customer due diligence fed by the immense regulatory industry of the United States, litigation is unforgiving. The tendency is to over-promise, deliver long watered-down reports or to focus too heavily on data which has little or no probative value in a court room or before a tribunal.
Unfortunately this has fuelled scepticism among many lawyers repeatedly disappointed by investigators’ results. Combined with lingering stereotypes of men in fedoras lurking under lamp posts or hackers with no respect for the law, these experiences undermine the perceived value of investigators in legal proceedings.
To cut through the noise and misperception is to say what most in our industry do not want to say: gathering evidence is manifestly more difficult than gathering information. In litigation, knowing the answer is not half as important as being able to prove it. Ignore the casual claims of hundreds of millions of pounds in recovered assets. Enforcement is hard.
To be a specialist in litigation support is to resist the temptation to have all the answers or to claim exclusive access to a secret weapon. It is to fully understand the nature of the problem and, most importantly, what constitutes value from the perspective of a litigator.
Asset tracing, forensic accounting, computer forensics; these are tools and useful ones, but they are not solutions. Solutions combine all of these forms of investigation with legal process, public relations strategies, regulatory leverage and politics. Specialists know this.
To be a specialist is also to know the limits of traditional investigative methods and work to find opportunities to use legal mechanisms to flush out confidential information. A well-directed 28 USC Section 1782 application can deliver an extraordinary boon of legally obtained banking evidence. But a successful application starts with a keen eye and a well spotted opportunity.
Creativity is also essential. The world’s best litigators and arbitration lawyers routinely test limits and invent tactics. Knowing how to litigate in any one country is as important as knowing how to orchestrate simultaneous legal actions in multiple jurisdictions to achieve a single objective. Investigators do not need to have studied law to provide support to litigators, but they do need to understand this jurisdictional arbitrage, contribute ideas and be able to partner in tactics and strategy development.
Finally to be a specialist is to accept risk. We cannot outsource essential aspects of our work. The standard model in which a client instruction is farmed out to a so-called “confidential source network” (spoiler: these networks are mostly subcontractors and shared among the industry) is ill suited for evidence gathering. Most of these resources are not accustomed to investigative tasks which require attention to admissibility.
This hands-on approach makes us visible. We receive threatening letters and submit ourselves to cross examination. We commit to playing an essential role in the success or failure of our clients’ claims. Their filing deadlines are our deadlines. We live and breathe our cases in the field and at 4am alike.
And so our role in litigation support is more than that of service provider. We are essentially in the trenches, embedded, a trusted strategic support available at all times and intimately familiar with the smallest of facts of each case. If you spend two years on a matter, a legal victory will feel like yours. A loss will too. This can spark a sort of obsession with the work. At the same time it warrants a cautionary note to would-be candidates: there are easier ways to make a living.
Nicholas Bortman, Partner & Co-Founder
Nicholas leads Raedas' Middle East practice. Over the last fifteen years he has participated in a wide range of private and public clashes among major corporations and regional businesses, merchant families and royalty heard in the DIFC courts, UAE courts and arbitration centres and London High Court. He has particular experience in corruption investigations, evidence gathering in jurisdictions with minimal disclosure requirements and supporting the enforcement of judgements and arbitral awards. Prior to co-founding the firm, he was partner and co-chair of the dispute consulting group of GPW. He established that firm’s office in the UAE. In 2016 Nicholas was asked to consult for the International Criminal Court of The Hague, evaluating the Court’s financial investigation practices and advising the Office of the Prosecutor on asset recovery in Africa. He serves on the expert roster Justice Rapid Response, an intergovernmental facility for the global deployment of criminal justice professionals and is a member of the UN Security Council Affairs Division’s roster of experts.
Joana Rego, Partner & Co-Founder
Joana has 13 years’ experience in investigations specialising in cross-border litigation support and asset recovery. She has assisted on a range of high-value enforcement actions across Europe, the Caribbean, US and Latin America and works closely with clients to maximise routes to recovery. She also specialises in evidence and intelligence gathering in the context of highly technical and contentious IP disputes, primarily in the pharmaceutical sector. Prior to co-founding Raedas in 2016, Joana was a partner and co-chair of the dispute consulting practice of GPW. She was previously an investigator for Diligence in Brussels and London and began her career working in international development cooperation at the OECD and the United Nations. She is a graduate of Sciences Po in Paris and studied at Université Paris X and ISCTE in Lisbon. In 2015, Joana was voted one of Management Today’s Top 35 Women Under 35, an award celebrating high-achieving women in business. Joana is fluent in Portuguese, English, French, Spanish and German.
Andrew Wordsworth, Partner & Co-Founder
Andrew has worked in investigations since 1994. Before choosing investigations he worked at AHL, the pioneering hedge fund. He believes strongly that the growth of the investigative sector has led inevitably to the growth of a specialist Litigation Support and Asset Searching profession. In his own career, he has transitioned from starting at the generalist consultancy Kroll through to co-founding the specialist Raedas. He works investigations in support of litigation world-wide although he has a particular expertise in Russia and the rest of the former Soviet Union. In the course of asset recovery he provides assistance enabling the seizure of assets, including ships, planes and works of art, on a global basis. A graduate in Law from the University of London, he has passed the New York Bar exam.