INVESTIGATION IN LITIGATION (OR HOW INVESTIGATORS CAN HELP ATTORNEYS WIN CASES)
By David C. Childe, CFA
Regular deployment of an investigator and a close attorney/investigator relationship can provide a critical edge in litigation – at every step of the way. Yet attorneys do not always utilize their trusted investigators as fully as they could. I have listed below a sampling of how a well-rounded investigator can add value to cases. And it is axiomatic that having one person perform all these jobs is highly synergistic. I will cover the items in bold in this piece.
- Pre-litigation investigation – facts
- Pre-litigation investigation – assets
- Service of the complaint and summons
- Assistance with the development of the trial notebook
- Finding new witnesses
- Interviewing all key witnesses
- Service of the witnesses, particularly the difficult locates
- Development of background and impeachment material pre-deposition
- Performance of forensic accounting to gather proof
- Conducting surveillance
- Analysis of the deposition transcript for inconsistencies
- Backgrounding of the jury pool
- Polling the jury post-trial
- Forensic accounting if judgment is won
Although attorneys and paralegals are generally more-than-capable of doing their own investigative work – and states recognize this by exempting them from licensing requirements – it is oftentimes more efficient and tactically sounder to let a competent investigator to do it:
Professional interviewers. The lion’s share of investigative work involves interviewing. Good interviewing skills involve putting people at ease and the ability to get people to open up and the ability to detect deception. Attorneys usually shine in this department, but not always. A good investigator invariably does. And, even if attorneys are skilled interviewers, people often clam up in their presence or tell them what they want to hear.
Out in the field. Willingness to venture out in the field on the 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 have yet to interview a witness in Germantown, HarborTown, or Chickasaw Gardens. I have interviewed numerous witnesses in certain other 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.
Can perform asset location and forensic analysis with little extra effort.Since the investigator is already out in the field interviewing various parties, it is only a small incremental step for him to subtly inquire about things such as lifestyle changes in general, vacation homes, boats, and art collections etc. Knowing this information up front can prove hugely helpful to the attorney’s determination of the resources that will be deployed on the case.
I have worked cases, wrongful death inflicted by a bouncer for example, where the attorney was not optimistic about the defendant’s insurance company’s obligation to cover the tort yet I quickly discovered via interviews that the bar owner owned three other establishments. Additional forensic accounting and legwork can lead to information that “pierces the corporate veil” of those who have tendencies toward hiding and shuffling assets and liabilities among multiple entities.
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.
Minimizes need for costly depositions. 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.
Economical.. In Memphis, most investigators charge anywhere from fifty ($50.00) to one hundred dollars ($100.00) per hour. This is less than the rate at which paralegals are billed out. Plus, investigators are already in the field on multiple assignments so can group interviews and site visits more economically.
Deploying an investigator to serve process is perhaps the easiest and cheapest way to better exploit the private investigator relationship:
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 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 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 will find new witnesses. Now, for medical malpractice cases, this is admittedly not as helpful to the plaintiff side because, as much as I believe in investigators’ value-added, they can’t conjure up people who weren’t actually in the operating room, emergency room, or doctor’s office. And these witnesses are already known (with some exceptions such as students and equipment reps). From the defendant’s side, a good investigator can find someone who is not necessarily partial to the case yet still sees this individual a lot and can vouch for or dispute the degree of injury. Either way, the attorney will surely want to know.
My experience is that developing new witnesses will often be a highly productive exercise in cases where the police are involved: Wrongful death, premise liability involving assaults etc. 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 recently was tasked with serving out-of-town witnesses who viewed yet another nightclub-related conflagration (see above). 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!
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 your home city any longer, 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 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.
Backgrounding is much more than just running the person on PACER, local criminal court site, and doing a local civil court check and merely noting the cases. The computer has made the basic job much easier. Yet a thorough job, which synthesizes information from a wide variety of sources, should be offloaded to an investigator with substantial experience in the area.
Public social media is oftentimes surprisingly revealing. It as been my experience that 30-40% of the subjects make most of their walls private, but many of these people still keep their interests and pictures public. Maybe people are vainglorious and can’t live without the world knowing what they look like and what they watch on TV. People just seem to enjoy painstakingly compiling their likes and dislikes treatise-like sections of boring minutiae. The only people who truly care about this stuff are private investigators and law enforcement.
Two ethical tricks to getting private information from social media. I cannot stress enough to not deal with any investigator who will “friend” your subject. This is clearly unethical. What can be done, though, is to run a historical analysis on the subject’s facebook, Twitter page, and/or any other social media pages. Chances are that the opposing attorney instructed his client to remove the public portions of the pages once the litigation process started. But anything that was public before then is fair game ethically and easily obtainable if one knows how to do it. The second trick is to run a search on the social media site in an effort to view the subject’s postings on other people’s public pages. Oftentimes, they can be quite revealing. And this does not violate any ethical precepts.
Knowledge gained 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.
More to it than just basic computer work. Each case file should be pulled manually and its contents thoroughly examined. You never really know what is in there until you look. I always read contested divorce files with great interest, as they not only contain useful historical information but oftentimes have interesting current items because the parties are continually coming back to court. I recently backgrounded a psychiatrist who, in an interesting twist of fate, was required to submit to psychological testing as part of an ongoing custody battle. His psychologist harped on three auto accidents he caused in the last year. I was previously unaware of this record, but it sure explains why he listed $12,000/year as his auto insurance premiums on his bankruptcy filing. It should be noted that bankruptcy filings are also particularly chock full of information regarding finances, lifestyle and priorities.
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.
David C. Childe, CFA is a licensed private investigator and principal ofLegal Research & Investigation, a wide-ranging investigation company based in Memphis, Tennessee. Email: firstname.lastname@example.org.