Monday, January 10, 2005

~ Hire The One Who Works for You ~ Investigators in Civil Cases

Attorney Lee Milford offers tips to lawyers hiring private investigators. These are summary points he develops:

+ Investigators add value to a case by finding facts that protect your client from further harm.
+ Investigators can conduct pre acceptance case assessments to determine assets and develop background on opposing parties, and provide a profile of experts and witnesses.
+ Investigators access information, not available to the attorney, through specialty sources. They have skills in computer forensics and in deciphering a subjects' internet activity.

Read the article by selecting the highlighted link,"Read the complete post!"
Using Private Investigators in Civil Cases
By Lee Stapleton Milford

As a former federal prosecutor, I was used to working with federal agents. Indeed, cases reached the U.S. Attorney's Office for prosecution by way of a federal agent who had done the investigation. This was true whether the case was a simple arrest of an individual smuggling narcotics into the airport via another country, which requires very little investigation, or a complicated money laundering or healthcare fraud, which requires the expertise of more than one agency.

When I entered private practice and began doing commercial litigation and white-collar defense cases, it seemed intuitive and natural to continue to use investigators to handle certain aspects of my cases. I was, and continue to be, quite surprised that many litigators who have not had the benefit of working with investigators do not realize the added value that an investigator can bring to a case.

For instance, an extremely wealthy married man on the West Coast found himself in the midst of a breakup with an equally prominent married woman who had left her spouse for him. As these things often play out, she threatened to sue him for palimony, although she was no doubt getting a great deal of alimony from the husband she had left. She claimed not that she was going to be living on reduced means but that her heart was broken and she was not sure she could go on. The investigator, a soul of discretion, learned that the grieving but litigious girlfriend was going to take a trip to a sultry island, ostensibly to recuperate from the traumatic ending to her romance and to gear up for litigation. The investigator, also a lover of warm climes, took the flight after the girlfriend and checked into the same hotel. Within 36 hours he was back on the plane, armed with rolls of pictures of her frolicking with her tennis instructor. No more lawsuit and no leaks to the press, since she did not want to be embarrassed by her romance with a much younger man. The client was delighted not only that he did not have to face a messy lawsuit but also that the entire matter was dealt with privately.

An investigator hired prior to filing a lawsuit may save a lawyer and client a world of grief down the road. As a first step, an investigator will conduct an asset search so that an attorney can ascertain whether it makes sense to file a lawsuit. An investigator can also conduct background investigation on the potential opposing parties, including principals of corporate entities, and do pretext visits.

A client may ask a lawyer's advice about filing a theft of trade secrets lawsuit. Several employees have left his company, which manufactures desalinization modules, and the client is convinced that these employees stole his plans on how to construct desalinization modules. An investigator can approach the former employees and inquire whether they have desalinization units for sale. If they do, and they are the same as the closely guarded ones manufactured by the client, the lawsuit makes sense. After the suit is filed however, such pretextual visits are forbidden because of party opponent problems.

A word about confidentiality is in order at this point. If your client hires the investigator, anything the investigator learns in the course of the investigation is fair game for discovery. When you retain the investigator, however, the work product privilege generally applies, and what the investigator learns is not subject to discovery. But make sure you check the rules in your jurisdiction. Discoverability may be a function of whether the statement is verbatim and signed by the witness, or a draft of the investigator's notes interspersed with his or her impressions.

Litigation is often viewed as a battle of experts. One investigator extraordinaire discovered in one of the cases he worked on that the expert witness had a short fuse regarding challenges to his professional background. The expert, who had impeccable credentials and was potentially harmful to the case, was examined closely by counsel at a deposition. The witness became enraged when the lawyer questioned his credentials and much of his background. The expert walked out of the deposition in a snit, never to be heard from again. In another case that this investigator worked, deep research into the background of an expert real estate witness uncovered a case in which a federal judge had disallowed the witness's testimony because he had "lied."

Americans are hooked on something that is more addictive than cocaine: information. Think of how many billions of words a day are communicated via cell phones, hand-held information systems such as Blackberries, and e-mail. According to some figures, 83 percent of documents never make it to the printer. Many of us are far less guarded when we are communicating in cyberspace. To paraphrase Art Linkletter, people say the darnedest things, particularly when they think their words are lost in the ether, never to be recaptured. This is where a skilled computer forensic investigator is of great assistance.

It may be that an attorney wants to know whether a document exists, perhaps one that has never been printed. The computer forensics investigator can determine this as well. These computer-type techie cops have the ability to recover lost or destroyed evidence, assist with e-evidence gathering and analyses, and generally winnow a great deal of material into some sort of manageable form.

One such investigator describes his work as "acquisition, analyses, and presentation." He acquires the information from the computer and investigates the integrity of the system and information. Pursuant to the mandate given by the lawyer or client, he then analyzes the information. It might be a simple keyword search or attempting to determine whether intellectual property was stolen and passed on. The presentation part of his job comes with writing a report with findings in a useful format, discussing the findings with the attorney, and, if necessary, testifying in court.

Pricing for an investigator varies much like fees for lawyers—it depends on the complexity of the work and the experience of the practitioner. Make sure you hire the right person for the job. Do not assume that, because you go to the super-deluxe investigative agency or to an accounting or law firm with an investigative component, you are getting the investigator with the perfect skill set for the job you need completed.

Do your own investigative work and find out about the investigator's background. How long has the person been doing investigative work? If she had a prior life in law enforcement, what did she do? I once went to a high-powered investigative agency to have assets tracked down. The managing director of the firm tried to foist off on me a retired federal agent who could not make a case when he was with the government, much less find well-hidden money. An uneducated consumer might have heard what agency this fellow had been with and assumed he was competent, but I happened to know better. Ask the investigative agency who will be working on your matter, and ask for the person's resume. Assuming the resume looks okay, ask to interview the person. Someone with good credentials might not have the people skills needed for the job.

I have seen poorly skilled investigators get involved in cases, with disastrous results. A prominent client once hired a well-known investigator to find out what his business partner was doing. The surveillance was subcontracted to someone who must have fallen asleep in the car while the partner was in a South Beach club partying: He missed a bar fight caused by the person he was supposed to be surveilling and other misconduct, and then he lost the guy. Insist that whoever does the surveillance necessary in your case has gotten some sleep before the assignment.

Great teams make great cases. Skilled lawyers and knowledgeable experts can make a good case better and turn a bad set of facts around. An experienced investigator will add to your knowledge base and insight, as well as save you time and money.

Lee Stapleton Milford is an associate editor of Litigation and a partner at Baker & McKenzie in Miami, Florida. This article was excerpted from a longer one appearing in Litigation, 30:3, Spring 2004, at page 18.


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