How an Investigator Adds Value to Your Complex Case: A Proprietary Turnkey Approach

A PROPRIETARY TURNKEY APPROACH TO INVESTIGATING COMPLEX CASES

Encompassing pre-litigation investigation, service of process, difficult locates, difficult interviews, deep backgrounding, surveillance, forensic accounting, and closely held business valuation

David C. Childe, CFA
To the Litigation Section of the Memphis Bar Association
December 21st, 2015

 

OVERVIEW OF THE TURNKEY APPROACH

This methodology is unique because it deploys just one Daubert-qualified private investigator

Complexity is exacerbated by having multiple investigators. Two-four private investigators, investigative paralegals, and/or experts can be deployed on a major case: One for locates and service of process, another for backgrounding and surveillance, another for witness interviews, and a potential fourth for forensic accounting and closely held business valuation. Because of the highly technical nature of the financial discipline in particular, these investigators will rarely if ever be employed by the same firm.

Since the individual members of the investigative ensemble do not “record” together, the attorney will not be able to truly “conduct” these investigations. Instead, each investigator will lay down his individual tracks and the attorney will have to splice them together in the studio as best he can. Miles Davis did not use this approach to record Kind of Blue. If you are a Beatles fan, you might recognize it as the the difference between Let It Be and their earlier material. Not that Let It Be was a bad album, by any
stretch . . .

Advantage #1 of using one investigator: Single point of contact and a comprehensive view of the case. Because a singular investigator will work closely with the attorney from the start and throughout, more effective theories and ongoing tactics and strategy should ensue . . . and quickly, too. The attorney will not have to wait for multitudes of uniquely styled reports from different investigators from different firms. The investigator will smoothly integrate the many components of the surveillance, backgrounding, witness interviews, business valuation, and forensic accounting on a real time basis – quickly recognizing issues that he otherwise would not if he were just one smaller part of the investigative equation.

Advantage #2: Surveillance—>enhances locating/interviewing–>enhances forensic accounting—> improves business appraisal–>improves backgrounding overall. On a case in which one of the parties may be trying to hide something, the easiest way to fully prove any shenanigans is through primary investigative methods such as surveillance – which will be the most efficient if conducted by the same person who is doing the backgrounding, forensic accounting, and/or appraisal of the individual or business. The hybrid surveillance operative/appraiser will be more on the lookout for potentially untoward actions such as odd working hours, removal of inventory, increase in cash transactions, transactions at formerly unknown banks, shady associations with suppliers, shady associations with customers, and shady associations with competitors. Moreover, an investigative background report from OSINT sources will be dramatically enhanced if fused with the findings from surveillance activity.

Advantage #3: Locating/interviewing—>enhances surveillance–>enhances forensic accounting–> improves business appraisal–>improves backgrounding overall. A good business appraisal (for example) will go well beyond the numbers provided by the self-interested party and extend heavily into primary research-oriented techniques such as interviewing former employees, former executives, suppliers, and customers. These people will have to be identified, found, and contacted – all provinces of private investigation rather than traditional business appraisal.

Advantage #4: Higher-quality, more credible, and more interesting evidence. The judge or chancellor will not be hearing merely opinions proffered in professorial fashion from an ivory tower perch. Expert testimony will now be supported by direct evidence collected via primary research in the field: Judges appreciate both thoroughness and simplicity – this method gives them both.

Advantage #5: Will save considerable money. The number of meetings with investigators will be cut by one half to two-thirds and the blended hourly rate will be much lower. That is because many tasks that used to fall under the umbrella of the $300-350/hour “expert” or “specialist” will now be in the province of the $100-150/hour private investigator.

 

THE OVERARCHING IMPORTANCE OF PRE-LITIGATION INVESTIGATION

“Cases are decided by facts, not law.”

Informal, pre-litigation discovery is oftentimes cheaper and usually more effective. Both the “people and the paper” need to be looked into quickly and as thoroughly as possible. Tom Mauet, in his excellent CLE to the section last year, made these salient points: Early information, particularly from witnesses, is more complete and accurate; it is easier to obtain information, as people often don’t cooperate once a formal lawsuit is established; information can be garnered without the other party even knowing; this method is far cheaper than formal discovery, which should mainly be used for specific and focused things.

The investigation should be started as soon as possible after the incident. Immediately if possible – particularly if eyewitness testimony is involved: Witnesses forget or get second thoughts about being interviewed; the first one to interview the witness has a psychological advantage; witnesses move away or just disappear; physical evidence can be lost altered or destroyed (Mauet).

Contacting known witnesses. Contact information in particular gets stale quickly – from police reports, from potential plaintiffs, and/or from potential defendants. Even if the numbers remain good, there is no guarantee that phones will get answered or that the subject will even agree to be interviewed telephonically.

Willingness to venture out in the field on the interviewee’s turf is often essential to getting the interview and critical to sustaining communication. People are generally not comfortable in attorneys’ offices. Evaluating witnesses in their own milieus affords key insights into their lifestyle, habits, and character.

Some attorneys and paralegals are willing to become acquainted with field work. I applaud them for this proactive stance yet discourage it on safety grounds alone, unless they have training in defusing tense situations in urban areas. I don’t know why this phenomenon holds true, but I rarely interview witnesses in Germantown, HarborTown, or Chickasaw Gardens. I interviewed countless witnesses in other Memphis zip codes. I have had guns pulled on me for basically no reason. I have walked in on drug deals. I regularly get challenged. Attorneys don’t need this kind of drama. Even more important, there are issues relating to testifying and potential disqualification (covered later).

Finding new witnesses. This is a most critical, game-changing task that rarely if ever can be done strictly from an attorney’s office . . . or any office for that matter. Existing witnesses – if made comfortable and if enough trust is developed – can be a treasure trove of information on additional witnesses (see above). Yet that is not enough. The scene needs to be visited. Brief surveillance is oftentimes conducted; however, it must be done around the same time of day of the incident in order to find people who might actually have been there. That could be two in the morning. Neighborhood canvasses around the scene are essential. The most sophisticated investigative agencies in the world, such as the IRS and FBI, strongly believe that this tactic is the most useful of all. So do I.

Thorough scene investigation and photography. Many factors naturally change – and oftentimes quite quickly – from the time of the accident: Seasonal, road condition, traffic patterns, lighting, markings, and signage. Others are changed intentionally by the defendant. The scene should be memorialized with both still and video footage as soon as possible. The shots need not be taken with a smartphone camera either – higher-quality equipment is necessary. In addition to the wide angle set up shots and certain close-ups, it is critical for the photographer to know and use settings that replicate the human eye’s field of vision as much as possible.

I worked a premises liability case involving jerryrigged wood stairs that were carelessly placed abutting a high curb to an entrance to a retail store on a major thoroughfare. Before the suit was launched, I took pictures, videos, and measurements from numerous angles. I visited the accident scene just a few weeks later. By that time the temporary stairs were already gone and replaced by spanking new permanent stairs that sure looked to be nicely designed to code.

Collection of video evidence. These days, quality video can be obtained on a high percentage of auto accident and premises liability cases, oftentimes from neighboring businesses that will not even be parties to the lawsuit. Yet, unless artfully dealt with, these people really have little-to-no incentive to produce the footage, as the viewing and offloading can be time consuming and the potential providers may assume that they will be on the hook as official witnesses. Many of the immigrant-owned ma-and-pa convenience store owner-types who will possess relevant video dislike police and authority in general; they lean toward attorneys and investigators in this category as well.

So it takes a polished and patient investigator to find and obtain relevant video. Then a mating dance takes place with the store owner or manager. This can last for days. Then a call might come at midnight saying I have one hour to come view and copy the video. In short, they don’t make it easy for us and experience in dealing with these types is most necessary. It is important to always keep in mind that store owners and other businesses are under no obligation to provide evidence to us without a subpoena. Only law enforcement seems entitled to muscle it out that way. Time is of the essence: The videos get overwritten 10-30 days later and are then lost for good.

Augmenting police investigations: Premises liability. Developing new witnesses can be a highly productive exercise when the police are involved in cases such as wrongful death and battery. These cases lull people into a false sense of security because reading the police reports will uncover the witnesses they interviewed and it is easy to assume law enforcement is thorough. Yet this list is oftentimes nowhere near exhaustive. And, frankly, law enforcement has its biases which show through in which people they choose to interview and which interviews they choose to memorialize.

I have worked premises liability negligence cases resulting in wrongful death inflicted by a bouncer, for example, where the attorney was not optimistic about either the actual degree of negligence nor of the defendant’s insurance company’s obligation to cover the tort liability. By making an effort to canvass the area, I quickly discovered via interviews with black proprietors of a nearby taco stand (who did not come forward with the police) that the white bouncer lied to police about stomping the black victim to death. These taco stand entrepreneurs were also quite knowledgeable about the doings of the bar owner in general and cheerfully informed me that he owned three other establishments and was a seemingly wealthy individual.

I was tasked with serving out-of-town witnesses who viewed yet another nightclub-related conflagration. At least no one died in this one, but a bystander was seriously hurt. As part of talking to people during the locate process, I learned that the police arrested the wrong individual. With the help of the bouncers, the real assailant escaped before the police arrived. The innocent person was the defendant in the case I was handling. He became the former defendant in a New York minute.

Augmenting police investigations: Auto accident. These days, it seems, insurance companies are sending their investigators out quickly and aggressively to try and establish witness contact – even if the police investigation shows their policyholder to be the clear at-fault party. On the flip side, plaintiff attorneys have no problem launching litigation efforts in the face of a countervailing police report. I can’t stress enough how important it is to be the first investigator to interview the witness. Barring that, one should be the most likable investigator to interview the witness. I will aver this truism learned from years of experience with field interviews: The investigators on the insurance company side are not necessarily the most charismatic or empathetic of people.

In some cases even obtaining the paperwork and photos encompassing the entire police investigation can be pulling hair-like. Outlying, small town police departments can be difficult – as can the Highway Patrol . . . and don’t view open records requests with the same mindset of cooperation, adherence to the law, and alacrity that MPD would, for example. When produced, the write-up may just be one small paragraph with little supporting detail. An investigator who knows the small town police (and THP) mentalities and comfortably bonds with these officers should be able to gain a more complete picture of their investigation.

There is an obvious lack of context inherent in police reports relating to the foreseeability aspect of the legal elements of the tort. This aspect is critical if the government is a potential defendant. I have worked cases where the issues emerged with respect to uneven pavement, roads with no warning signage approaching hills that obscured oncoming traffic until the last moment, sinkholes caused by underlying factors that authorities were aware of, numerous past accidents at the exact same spot without any action taken to improve safety.

I have developed considerable experience in school bus accident cases, which serve to magnify many key issues inherent in the genre. A coterie of cops are called to the scene, including Sergeants and Lieutenants. There is usually press coverage. The initial officer is often overruled. The bus company has a lawsuit target painted all over it. There are many minor students to interview, which is not only a challenge in terms of getting their and their parents’ cooperation but also in finding them at home. Insurance companies do not pay out quickly. High levels of contention rule throughout.

Nursing home negligence cases. Pre-litigation work can be particularly valuable in these instances because contact rules may be different (depending on the interpretation and specific applicability of Rule 4.2). So LPNs and RNs could possibly be interviewed along with the usual coterie of CNA’s, depending on attorney preference. It takes substantial investigative effort and know-how to locate many of these sometimes-sketchy subjects: Past case jackets, industry associations, dedicated resume sites, deep social media, deep dept of health, and deep Google. Moreover, considerable relationship-building must be undertaken because this kind of testimony is almost always not in their best interest – unless they have completely left the nursing case profession.

Developing evidence in potential class or collective actions. These particularly complex cases arguably call for the most synthesis of investigative skills: Understanding complex legal subject matter, boiling the issues down, identifying employees or customers that fit often narrow criteria, locating them precisely, obtaining their phone numbers, and then interviewing potentially highly recalcitrant subjects. The same exercise needs to be conducted for those who worked at the company within the last few years. No marketing whatsoever is allowed during the interview process. Purely investigative. The law firm has to place overwhelming trust in the investigator to not step over the line – which could lead to sanctions and even disqualification. Yet it is most critical to create a good impression in the interview subject’s mind, because he does have the potential to be a class member at some point. The decision to join must not be independent of the contact with the investigator; nonetheless, the opposition oftentimes tries to blow-up these contact issues. It is much better for the defense when the contact is made by an outside investigator rather than an in-house paralegal or other professional.

THE RATIONALE FOR USING AN INVESTIGATOR TO SERVE YOUR PROCESS

He is not Rambo. The best process servers are not Rambo-wannabees wearing badges, BDUs, and sidearms. Private investigators are, by nature, empathetic types who think of bonding with people rather than intimidating them.

I have helped cases settle by having an open, respectful discussion with the unlawyered defendant – in one instance his family actually invited me into his home for dinner. The meal consisted of chicken wings cooked on a hot plate on the kitchen table. Given this exceptionally strong circumstantial evidence, I had to report to the attorney that the odds of collection in full were negligible. The defendant was amenable to a weekly payment plan, though.

There are always two sides to a story; being a defendant does not mean you are a bad person or have even done anything wrong. Even if there is substantial merit to the action, the fact pattern in the complaint will invariably be over-dramatized.

Receipt of the summons oftentimes breeds a highly emotional reaction . . . which will often lead to an excited utterance . . . which means I can testify about said utterance as an exception to the hearsay rule. In about one-third of the cases, the defendant will give me his side of the story in a detailed manner without much prompting.

A competent and thorough investigator will read the complaint before serving the summons or subpoena, thereby gaining the requisite background to effectively engage the person. I helped qualify witnesses and more-than-once even turned a formerly prevaricating witness to my attorney’s side. Witnesses oftentimes shade the truth initially in an effort to tell people what they want to hear and minimize potential conflict, providing one side of the action a false sense of security Yet by gentle questions one can determine that their testimony will actually prove more helpful to your attorney’s side.

He can build relationships with existing witnesses. An investigator will already know the case or, if not, possesses an inquisitive-type mindset for chatting up the witness and serving as a friendly representative for the law firm. Being dealt with in this manner is oftentimes a pleasant surprise to the person getting served, who may have watched too many Hollywood versions of the hardcore way process service can be done by more primitive operatives. Soft touches with velvet gloves get the job done far more effectively. I have heard on more-than-a-few occasions from witnesses who also were served by the other side that the friendly approach was greatly appreciated and in stark contrast with “those jerks” from the other side.

He will find new witnesses. In certain types of cases, new witnesses can be found in the vicinity of where the known witnesses are being served. Because of the central place of employment and potential for numerous adjacent businesses, premises liability torts are good candidates for witness clusters. So are auto accident cases in non-remote areas, where the investigator can just start knocking on doors.

I was tasked with serving out-of-town witnesses who viewed a serious nightclub-related conflagration. At least no one died in this one, but a bystander was seriously hurt. As part of talking to people during the locate process, I learned that the police arrested the wrong individual. With the help of the bouncers, the real assailant escaped before the police arrived. The innocent person was the defendant in the case I was handling. He became the former defendant in a New York minute.

His observations may come in handy later. This holds particularly true when it comes time to collect on the hard-earned judgment. An investigator will take note of the size and condition of the home, the number and condition of cars in the driveway, the furnishings inside, the dress and jewelry of the defendants . . . and anything else that might be interesting. The interplay between spouses can be particularly noteworthy as well. And don’t forget that excited utterance that he may have heard! The act of serving process may be the only time an investigator can legally set foot on an opposing parties property without violation of some combination of trespassing law or contact rules.

He is a skiptracing professional. There is no excuse for a NTBF . . . period. Everyone is findable, given enough time. And if they aren’t in Memphis anymore, through field interviews, the server should be able to learn where the subject went.

A private investigator’s mentality is one of getting the job done rather than that of batch processing. He is not running all over town in an effort to serve as much process as possible daily or even hourly, so will take the requisite time to painstakingly locate a difficult subject. And, at least in my case, I do not even charge extra for a basic skiptrace.

He has more credibility with substitute service. For openers, most standard process servers can’t even try to effect substitute service, because they have neither the time nor inclination to determine in advance where the subject lives and who else lives in that residence. He must know the case law on evasion as well. On almost all non-FED serves in Tennessee, this is the only legitimate reason for a substitute serve. Many judges – particularly in General Sessions Court – will require a separate affidavit detailing the evidence of evasion: Lights on, cars in driveway registered to subject, neighborhood canvass, phone contact etc.

He is creative. One of my favorite lines of business is serving Alias Warrants. It has been my experience that about half of these NTBF’s are actually right under the server’s nose to be readily found . . . they just choose to not come to the door. A primary reason they make this choice is because the server is either the Sheriff or a private server dressed in BDUs wearing a badge. I cannot understand this mentality. Dressing in something innocuous and off-putting is a far better tactical approach. I like to wear tie-died T shirts, for example. If necessary, an investigator will deploy some subterfuge in the form of pizza delivery, flower delivery, courier, long lost high school friend, etc.

He is not the Sheriff. See Rambo and Creative sections above. Plus, the Sheriff takes up to thirty (30) days to get the job done and communication with that department about status is well nigh impossible. And the rates aren’t really all that different: about thirty dollars ($30.00) for the Sheriff and forty to fifty dollars ($40.00-50.00) for a private serve. My firm will guarantee service if the defendant is in Memphis and will offer same day service at no extra charge for good clients. I would hope that my competitors would do the same. I know the Sheriff doesn’t.

RATIONALE FOR USING AN INVESTIGATOR TO CONDUCT INTERVIEWS

First on the scene. These days, it seems, insurance companies are sending their investigators out quickly and aggressively to try and establish witness contact – even if the police investigation shows their policyholder to be the clear at-fault party. On the flip side, plaintiff attorneys have no problem launching litigation efforts in the face of a countervailing police report. I can’t stress enough how important it is to be the first investigator to interview the witness. One of the most pervasive and deep-rooted human thinking biases is called the “anchoring effect.” People’s memories get cemented by one piece of information. Your side should put itself squarely in that position.

Likability. Being the most likable investigator to interview the witness can help to overcome not being first. Being both likable and first is powerfully synergistic. I do know from many field interviews that the investigators on the insurance company side are not necessarily the most charismatic or empathetic of people. An investigator who possesses the opposite qualities will leave a most positive impression with the witness. It is human nature that people, generally on a subconscious level, favor those they like with information helpful to them.

Good investigators have both natural likability and constantly work on this skill. It basically comes down to genuine concern for people, being well-rounded enough to connect with most anyone, and the ability and willingness to truly listen in an empathetic manner. There are some techniques that help (these work at cocktail parties, too!): Smile frequently; expect people to like you; let them know there is an end in site and it is close so they don’t feel trapped; make yourself vulnerable from the start by disclosing something like a blunder you made; let people talk about themselves and keep them talking by following up with questions that show you were paying attention; let people know that their observations and even opinions are valued; never correct of engage in one-upsmanship of any sort; shake their hand.

Ability to testify. Attorneys are advocates, not witnesses. They don’t testify. Paralegals are viewed as extensions of the attorney. Investigators get the best of both worlds: They are hired by the attorney so they enjoy protections under work product doctrine and attorney/client privilege. Yet investigators remain independent contractors so are allowed to testify about the case on which they are working. Additionally, an ethical investigator gathers facts in an effort to seek the truth and is not viewed by juries as having a dog in the hunt the way an attorney or paralegal would. One of the more distasteful outcomes in litigation is having to be an opposing witness in your own case, which an investigative attorney can set himself up to become. This outcome is particularly brutal given that it usually leads to disqualification from the case.

Can garner better information than formal discovery. During an informal interview with an investigator, conducted at a place of the interviewee’s choosing, the subject is much more relaxed than in a sworn deposition at a fancy law office with video cameras rolling, court reporters typing, and attorneys heatedly questioning. The informal interview with the investigator is oftentimes exponentially more informative . . . and truthful. An attorney can then decide whether or not to call the witness later. And the witness does not have to feel locked in to his testimony, although the investigator can choose to tape the interview which would have that effect. Either way, the field interview conducted by the investigator affords the attorney much more tactical flexibility.

Leaves an array of tactical options for the attorney to pursue. Tactically, it can be risky taking witness inputs for granted and leaving any memorialization until the deposition. It makes sense to have the investigator get a feel for the witness first That way, the person can be safely ignored if the comments look to be deleterious. If helpful, then a number of avenues can be taken: The investigator can obtain a signed declaration; the investigator (who should be a notary) can get a sworn affidavit; a court reporter can be brought out to make the process even more formal; or the witness can be held until the deposition. The tactics are oftentimes dictated by evidence and procedure rules that govern whether the witness comments are classified as statements and whether or when those statements have to be turned over.

ADVANCED TIPS ON LOCATES

Momma always knows. Yet she probably won’t tell. Even when people go through their darkest periods, they do call their mommas . . . if for no other reason than to ask for money. And, no matter how despicable the individual, momma is loathe to tell where they are. Yet a good investigator knows how to coax it out of momma. So, with a difficult subject, locating Momma should be viewed as just as important as making the direct effort to locate the target individual.

Find the close relative with the paid-off house. Not surprisingly, this residence will be a locus of activity and crash pad for many family members, particularly those with nefarious tendencies and those who are unemployed – categories which will be likely to include your subject.

Check birthdays of all close family members and note holidays. Evasive subjects oftentimes make a point of ingratiating themselves with family members, if for no other reason than to keep the loan spigot open. That means showing up for their birthdays and for holiday gatherings. So the investigator needs to make his appearance on these occasions as well. Santa suit is optional.

Skiptrace the girlfriend/boyfriend, baby momma/baby daddy. Many people who are hard to locate have nothing tangible in their names. This might be for nefarious reasons or it may not. Either way, someone close to them will have the lease, utilities, phone, car insurance, frequent shopper cards, magazine subscriptions etc. in their names, thereby allowing the subject to live a reasonably normal life while maintaining a high degree of privacy. The enabling person will usually be the girlfriend or wife, but could also be a parent or adult child.

The classic “do not forward” letter. This is the oldest trick in the book and still works a reasonably high percentage of the time – primarily because the postal service is not allowed to sell this information to the database information brokers.

Send a blank letter to the subject with “do not forward” written near the last known address and “return service requested” written near the return address. Within a week, the postal service will provide you with the new address if indeed a change of address form were filled out.

Run the name in the paid databases a few different ways. Run it in the paid databases at least these ways: First and last name only and last-known city; first, last, and middle and last known city; first and last name and date-of-birth; then, run any names that show up as likely AKAs (this last step is particularly important for woman who have been married a few times and changed their last names).

Most difficult subjects will NOT show recent data if strictly run by the social security number. Yet, for reasons beyond my scope of understanding, the name searches tend to work better. In contrast, on an easier subject, the social security number tends to be the best identifier.

This method will prove problematic if the subject has a very common name and no other information is available – which hopefully will be a rare occurrence; however, if this is indeed the case, then efficiency would dictate starting with the next step of the process listed below.

If all you have is a name . . . here’s a free way to get the date-of-birth. At least with the name and date-of-birth, one now has some reasonable parameters to work with. Trying to find someone on name alone (particularly if a common one) – although an exceedingly rare assignment in this day and age – can be a Sisyphean task. So here is a free website that converts names and approximate ages to dob’s: birthdatabase.com. Now that you have these two items, you have a fighting chance of getting additional useful information from the databases.

Run the last-known address and carefully analyze findings. On a difficult subject, this is usually the most important starting point, for the following reasons: It will hopefully provide a slew of relatives/associates who were once living with the subject – these people are prime opportunities for follow-up; it may provide a number of variations of subject’s name; it may provide other key identifiers like social security number and date of birth.

Run any known close relatives. Paid databases these days are quite good at providing associative information, potentially highlighting your subject as being linked to one or more relatives whom you input into the database. At that point, just click on the name of your subject and then the remainder of his information should appear shortly. On difficult subjects for whom an address history is not known, this method works a reasonable percentage of the time.

Run the Shelby County arrest screen, which is called JSSI. The percentage of subjects who have been arrested is surprisingly high – perhaps not so surprising given that there is oftentimes much overlap between people who attorneys want to find and people who have been accused of crimes. The JSSI system automatically updates the addresses to reflect the data given from the most recent arrest and from the bonding company. Furthermore, even if the cases get dropped (which about 1/3 of them do), the arrest data stays in the system – unless the defendant hires an attorney to file the paperwork to get the data removed. Most people do not think to do this.

Run the plates of all vehicles associated with any arrests. This information will come from the misdemeanor affidavits (see below). If he was driving and the vehicle was his, then the vehicle registration address is either still good or was good at one time. The usual situation is that the vehicle is someone else’s. That person may now be quite perturbed that his vehicle was associated with criminal activity. You have just discovered a sterling potential fountain of information on your subject.

Obtain misdemeanor citation affidavits. Because of jail overcrowding, many Shelby County misdemeanor arrests (including most driving charges) do not result in the suspect being jailed; instead, he is issued a citation and is required to appear in court at a later date. The write-ups by law enforcement are richly detailed and easily accessible on the internet – with the caveat that your subject was actually arrested for a misdemeanor in our county. These affidavits contain a wealth of useful information – including but not limited to current address, phone number, employment, make/model of vehicle, co-defendants, and alleged victims. Most arrestees will not overtly lie to the cops about this information. The main problem is that it gets stale quickly.

Obtain recent traffic tickets. When being cited for a traffic violation, people will oftentimes give their correct addresses to the officer even if it isn’t the same as the out-of-date one on their driver’s license. In my experience, 20% of drivers have an incorrect address on the license. The figure is far higher for those who move around more. The average person moves every three years. So another investigative tactic involves doing an online search of the subject’s traffic tickets.

Many counties (including ours, thankfully) make this available for free. If not, then a trip to the courthouse or DMV office will be in order. In Tennessee, those with an authorized purpose can pay roughly seventy-five dollars to set up a yearly account with DMV plus about four dollars per search to get statewide traffic ticket information directly. Yet, strictly within Shelby county, this information is available for free on the local JSSI system on the internet (for tickets issued by the Sheriff) or by asking the clerk at the traffic division office located at the lower level of the
general sessions criminal court (for tickets issues by MPD).

Obtain incident and accident reports. In Shelby county, these reports are available to any Tennessee resident for only a nominal per-page fee from the MPD central records office on the 10th floor of the criminal justice building. Provide the clerk with your subject’s name and date-of-
birth. Ask for a blanket search for a five-year time frame or so and any incident/accident report over that period will be provided.

Under a blanket search, the subject may show up as either a victim, witness, or a suspect. Either way, much useful information can be garnered such as address, phone number, employment, other people involved, and vehicles. If the subject was a victim or witness, then one can count on the information being provided as accurate at that time.

A big advantage of running the incident reports – and a main reason why the effort is almost always worth it – is that it captures the victim and witness information. For your subject to show up using some of these other search methods, he has to have actually committed a crime or traffic offense. Even Snow White has a chance to show up on the incident reports.

Call the last landlord. Difficult subjects and poor landlord relationships often go hand-in-glove, so cooperation is relatively assured. No matter whether they are apartment complex leasing personnel or individual homeowners renting out their places, landlords tend to know a lot about their tenants. In the case of a homeowner, the landlord’s name can be easily found at either the county registrar’s or tax assessor’s website or office.

Do a thorough “neighborhood. This is a preferred tactic of FBI agents, apparently relying on the premise that neighbors really are nosy. I have found canvassing neighbors at the last-known address to be a reliable source of location information on a subject who has moved; however, this tactic should be reserved as a last-ditch measure because oftentimes it will result in the subject finding out that you are looking for him.

Two tricks to get the highest-quality information: Look for the house with the best manicured lawn(those people tend to be the nosiest); talk to kids about 10-12 years old (they are not old enough to be overly cynical, adult-haters yet still old enough to make reasonable observations).

Local store owners, delivery men, beat cops, postal carriers, kids playing, and pizza delivery people can also be queried as part of a thorough canvass.

Forensically analyze Twitter and Facebook. There are numerous free sites – MIT and Harvard have particularly useful ones – that will analyze geolocate data and allow a thoughtful and persistent analyst to come up with a composite on the subject’s whereabouts.

File open records requests. An esoteric one that oftentimes works is for the jailhouse visitors of your subject or the person who received authorization to claim your subject’s property at the jailhouse. Also try the State Department of Labor to see what address was used on the filing of the unemployment or worker’s compensation claim.

Last but not least . . . mother ALWAYS knows!. Keep coming back to her if necessary.

DEEP BACKGROUNDING

A high-quality background investigation can be viewed as a mosaic. Some of the individual pieces may be quite alluring in themselves, but the overall composition from the synergy of the pieces is the true art that is being created. A few examples from my experience:

  • A plaintiff I backgrounded in a med-mal case had two out-of-state assault convictions – one was against her own mother. I discovered from an ex-boyfriend that her mother had Multiple Sclerosis at the time, which was not noted on the police report. The fusion of these two pieces of information created a much more powerful picture for a jury to ponder about this woman’s character.
  • A plaintiff in a wrongful death case had filed a Petition to Establish Paternity and to Change Name on behalf of her daughter in 2008 in Mississippi. The presumed father had already terminated his parental rights. A DNA test determined that the current husband is the father. A number of out-of-state documents yielded the findings that the daughter was born in 1992 yet the divorce petition was not filed until 1995. So it is virtually certain that the plaintiff cheated on her husband and did not tell him about true paternity until many years later. This conclusion was not stated in any individual document. It was arrived at through creating an informational mosaic.
  • I discovered that there was a high probability that an expert witness M.D. had committed disability fraud. He collected full disability in 2007 and reported no other income on a bankruptcy filing. Yet under oath as an expert witness in another case he claimed to have a full patient load in 2007. In fact, business was reportedly so good in 2007 that he moved to a cash-only payment scheme which is quite suspect in itself. Once again, it is the art of combining information from data sources into a new, more devastating conclusion that separates the top background investigations from the merely good ones.
  • A drive-by of a plaintiff’s residence in a med-mal case showed that the home was in a shocking state of disrepair and the front yard stunk – the whole property was almost third-world-like. So I casually chatted up a neighbor. I was then told that as many as fifty cats were in that house and/or roaming around at one time. The next door neighbor even erected a fence in a vain effort to keep them away from his property. This neighbor also called Animal Control on the family. 4-5 units supposedly rolled up and spent hours capturing these felines. There were reports of dead kittens found in the house, in addition to feces and garbage. I confirmed this with hard copies of the reports from animal control. The uncleanliness of the home and lifestyle of the occupants did have an important bearing on this case. It was the mosaic that ultimately led me to get the animal control reports.

A criminal background investigation usually starts with the locate. Because there is no such thing as a national criminal database available to the private sector, an address history is vital just to get the criminal history part done accurately. The true picture can only be obtained by going to each county and/or city in which your subject has lived and thoroughly checking the criminal history through some combination of incident reports, arrests reports, and court records. In many smaller cities and counties, the only way to do this is by telephone.

Use the locate information for the other local pieces of the investigation. I cannot emphasize enough how important it is to take the trouble to perform the following steps in every city/county that you can identify as a former residence of your subject (all of the following are open records, at least in Memphis and Shelby County):

  • Civil court records – general sessions and circuit court levels
    Probate court records
    All property deed and tax records from the assessor, registrar, and/or recorder
    Subsidized housing records from the Housing Authority
    Business licensing records from the city or county clerk
    Construction/zoning-type records from code enforcement
    Vehicle history records from the clerk and/or DMV
    Traffic tickets from the clerk and/or DMV
    Incident and 911 reports
    Fire reports
    Health department inspection reports
    Marriage records
    Birth and death records

Be relentless about demanding open records. I make it a point to thoroughly research the open records law exceptions and exemptions in the state I am making the request in. Most of the time the bureaucrats at the other end are helpful – particularly in smaller towns and counties. Yet some officials may get provincial on you and still deny a legitimate request. My approach in these cases is to ask the denier specifically what exception to the law is being relied on. By law, he is the one who has to show cause. If still no progress, then demand that the request is moved up to the city or county attorney level – where it will invariably be approved.

Incident reports, incident reports, incident reports!!! Request them from every city in which your subject has lived. They will give you the most complete picture of potential and actual criminal activity of all the law enforcement reports available – because the more commonly obtained arrest reports flow from the initial incident reports. And because even incidents that do not turn into arrests are still obtainable on the incident reports. A pattern of activity that results in multiple dealings with law enforcement – arrests or no arrests – is worthy of investigative follow-up.

Incident reports are particularly golden because they pick up the person as a suspect, victim, or witness – and they are oftentimes quite detailed as well. From witness status, you can oftentimes glean information about their associations and their being in the midst of nefarious activity. From victim status, you can oftentimes learn a lot about their mindset (regular calls for domestics that don’t result in arrests, regular calls on their children, regular calls for harassment, regular calls for burglaries with no signs of forced entry and valuable items taken). For best results, have them run two ways: by the person’s name. . . and by the address.

These reports are almost never available on the internet. Although most states do not exempt them from Open Records acts, it can be like pulling teeth sometimes to obtain them from the law enforcement records people. Be persistent. Be firm. Be nice. Act like you expect to receive them, not like the bureaucrats are doing you some kind of massive favor. By law, they have to provide them to you in most cases. If they continue to resist, send them a formal request letter containing detailed language from their State’s Open Records laws.

Do everything possible to obtain the resume. A hard copy of the actual resume is best, yet a Linkedin long version or Beyond.com version or something from the myriad job sites out there would suffice. Include a resume request in interrogatories and/or deposition materials and/or other discovery requests. Subpoena, if necessary.

A Google search using the person’s name and keywords such as “resume” “CV”, or “Curriculum Vitae” oftentimes proves productive and should be a standard part of the repertoire.

Try and get multiple copies over a number of years (granted, that is fairly easy to do for an expert witness but a challenge for most others). That way you can closely analyze the changes
over time. Look for items once contained that are now omitted. Look for changes in job titles, however subtle. Comb each resume line-by-line. Verify each and every claim.
It has been my experience that even the most erudite and esteemed expert witnesses produce some type of puffery, major omission, or outright untruth on their resumes. Interestingly, these can oftentimes be found in the non-professional or other section. Here are some examples fused from expert witnesses I have backgrounded:

  • Claimed to be a PADI Master Scuba Instructor yet not even listed as certified scuba diver
    Claimed to be a Rotary Club member but was not
    Claimed to be an Honorary City Council member yet there was no record of it
    Claimed to be an official surgeon to a well-known organization yet no record of it
    Deleted stint as COO of now-bankrupt venture into the blood storage realm
    Failed to list full extent of consultancies, research grants, and other associations
    Listed numerous hospitals where the doctor no longer had privileges

Comb through the entire bankruptcy and/or divorce jackets. These are the mother all all background sources in the non-criminal realm. Since 2006, PACER has put the entire jacket online, making our job much easier. I have yet to see a court put the entire divorce jacket online, although some jurisdictions provide much better highlights than others. So reading the jacket entails a trip to the courthouse and substantial note taking or copying. Trust me – the trip is almost always well worth it. Here are some examples of items unearthed:

  • From the divorce file of an expert witness- Buried within this one-foot thick jacket was a psychologist’s report stating that this expert has received extensive psychiatric and psychological treatment for anxiety, panic, depression, and pain. His short-term memory was noted as poor and he could not express himself linearly. According to this report, the expert closed his outpatient practice to just focus on forensic work. The file goes on to state that he ultimately closed his practice completely because of despondency and depression. As of the next year, he claimed to be unemployed with no medical practice to speak of and disability checks as his sole source of income. One final noteworthy item was that the expert managed to cause three auto wrecks within a short period of time.
  • From the bankruptcy filing of a defendant-The filing highlighted massive overspending on the part of the couple. The husband was already paying $5,200/month in alimony and child support from his first marriage, yet still accumulated the following (under significant debt): Two expensive residences; two farms; a Florida condo; five vehicles. The farm required a manager and the kids had a nanny. The kids also attended private schools.

Tips on searching with Google. There is no substitute for tenaciousness, multiple keyword combinations, and ingenious keyword development and use.

  • Use site search for Facebook, Twitter, LinkedIn, Amazon, eBay, and Craigslist. Although these site have their own search features, Google’s will oftentimes be better and more convenient
  • Always put the name in quotes and do every search twice: Once with first and last name and once with first, last and middle initial.
  • Search by name (two ways, see above!) combined with last known city. Then do the same for every city you suspect the subject may have lived. You can even do combinations of cities.
  • Search by name combined with each specific address you have unearthed
  • Search strictly by the specific addresses
  • Search strictly by any phone number or email address you have unearthed
  • Search by name combined with each employer you are aware of
  • If you know the university the person attended (often in the deposition transcript), by all means search by name and university combination.
  • Go well beyond the first few pages of results.

Example: I was tasked with getting current information on someone when all I had was his name (which was a common one), the fact that he had spent some time in Memphis around 15-20 years ago, and a 15-20 year-old email address. I ran the email address on Google, which led to his reference (in an obscure user group) to an undergraduate paper he wrote at Cornell on the food service industry. So I then ran his name combined with Cornell and food service. That produced a Linkedin account of an Ole Miss Adjunct Food Service Professor who attended Cornell University. Then running his name and his current employer got me even more information.

How to search Facebook more cleverly. Without advanced techniques, Facebook is now quite difficult to usefully penetrate for backgrouding. The interfaces were completely revamped – for the worse – in December, 2014. Fortunately, there are ways to easily traverse around these barriers.

First you have to find the right person . . . A key trick is to use the advanced filters provided by Facebook which, unfortunately, were largely eliminated. Nonetheless, the persistent and creative researcher will bypass the defaults and still search the dropdown and friends menus by various categories or combinations of categories that don’t appear together normally: name, employer, city, marital status, how near etc. If your subject has a common name, these filters will be essential to finding him. Using combinations is most important on a difficult subject.

What if their Facebook account is under an alias?. . . This scenario is fairly common among younger people who might go by street names rather than formal names. If you don’t know the street name, then there are a few ways I know of surmounting this problem: use his email address, if known; (or) use a Google site search under their real name and the alias might come up; (or) if that doesn’t work a highly labor-intensive but effective way if you know what they look like and know some of their friends or relatives is to slog through any public profiles of these people and look for the picture of your subject in their friend’s section.

Study the associations . . . If your subject lists her friends on her public profile, then the task is made infinitely easier. Even in this case, though, winnowing is a must because of the hundreds or even thousands of friends normally contained in a Facebook profile, only a few are really close and merit further scrutiny. Determine who these people are by seeing who is liking posts or pictures or commenting on them regularly on the wall. Then follow up on these leads only.

Pay particular note of who your subject is NOT friends with. . . This is a great way to find sources, particularly those of the Judas variety (the best kind!). If you see certain close family members showing up as friends of other family members – but not of your subject – there is a strong probability of a busted relationship situation. Animosity and vendettas invariably translate into the feuding party being a talkative and useful source.

What if the wall, personal information, and friends’ identities are all private? . . . This can be overcome by ethical means . . . an advanced trick is to CHECK THE PHOTOS themselves for likes and comments. Then go to these individuals pages and find one that is indeed public. You will now see any comments from your subject that were exchanged with this person. Next, DO A SEARCH USING THE PULLDOWN MENU at the top (this is not as easy as it once was but is still highly doable with advanced techniques). Items of particular note are “photos liked by” and “pages liked by” and “photos commented on” and “photos tagged in.” This information will now roll down the screen, oftentimes in copious detail, hopefully much to your delight.

Use the mosaic theory to find employment information. Although there are services that claim to be able to find employment histories for anywhere from $150-350, I question the accuracy of this information. I also question how they find it, because if a law firm hires them and they use pretext (an ethical breach) and/or credit reports (a crime), then those acts will accrue to the attorney as well. Instead of paying for dubious information, use these techniques:

  • Muscle through on Google with their name and these general keywords: “city”, “past city,” “career,” “past employer.”
  • Search Google more elegantly by typing in the subject’s name and these specific keywords: “resume” or “CV.”
  • Use the hybrid free/paid databases like Intelius, which contain a surprising amount of employment data; be sure to try both the regular and cached version options that come up.
  • Check LinkedIn just in case. A surprising number of people across all employment sectors have LinkedIn accounts and maintain them even when being evasive.
  • Search other employment sites such as indeed.com or beyond.com. These are particularly useful for positions of the non-managerial variety.
  • Scour Facebook carefully, paying particular attention to likes, activities, comments, and locations. In some cases, the current or past employment could be listed directly. If still no results, an effective but time-consuming method is to plow through the friends and look for at least three who share the same employer. Chances are that is your subject’s employer, as well.
  • Scan any divorce jackets. You will at least get the employment history that way.
  • Knowing prior employers can be the key to the kingdom. Call the department where the subject worked (NOT human resources, unless you want to be stonewalled) and casually ask for your subject. Then get chatty with the person on the phone and see if anyone in the department knows the current employer.
  • Call the prior landlord. Employment information will definitely be in the file. The key will be convincing this person without misleading him to share the data with you.
  • Obtain all traffic tickets and misdemeanor affidavits. There is an employment section on misdemeanors and oftentimes this information is asked for with traffic citations, if only in phone number form.
  • Depending on their nature, certain local utilities are considered public and must comply with state open records laws. If so, file a request on your subject’s employment.

SOME FINAL WORDS ON BACKGROUNDING

Backgrounding knowledge helps to optimize the surveillance effort. Surveillance doesn’t have to entail sitting in a van for days in a vain attempt to watch the subject perform some act in the front yard. Not only is that terribly boring (although quite lucrative) for the investigator, but needlessly expensive for the attorney and insurance company. Moreover, sitting in vans for hours at a time is an excellent way to “get made.”

If the surveillance operative has already done a thorough background of the subject, he will already have garnered a healthy amount of useful habit/movement-type information. As a result, he will be able to intelligently predict where the subject may be at certain times on certain days. So, instead of aimlessly waiting around, the investigator can target those periods and follow the subject to where he is going. Most normal people aren’t terribly surveillance-conscious anyway; they are even less so when away from their homes.

Results should be painstakingly compared to the deposition transcript. A good background report will provide the attorney with a solid composite of the subject so he will better know what he is dealing with in the deposition. Secondly, this background will be the basis for impeachment material both on a prima facie basis and on the basis of potential dishonesty exhibited during the deposition answers, which can open the door to the attorney’s getting substantially more impeachment material into evidence later. Unlike most other character information, honesty and integrity are almost always relevant and open to attack.