An Attorney's Guide to Outsourcing Fact Finding and Evidence Collection
As an attorney in a particular field, you are the quintessential specialist. Building a case that applies both stare decisis and statute to new, unique, and often dynamic situations is nothing less than the creation of a tangible vehicle from abstract and ethereal components. It is a science, but its practice requires an artistic mastery of multiple disciplines. The inherent complexity of your primary function naturally limits its successful execution to that small percentage of the population who are able to combine and integrate high level outputs from both cerebral hemispheres.
... and then of course you have to explain it all in a way that we everyday folk can understand.
What's more is that people are counting on you. Really counting on you. Your clients' property, their freedom, and in some cases, their lives, are in your hands. Professional ethics and basic human decency make putting your absolute best effort into every case a categorical imperative. But you know this already. Let me offer you something new to ponder.
Phil Mickelson doesn't moonlight as a caddie. If you are spending your billable hours doing something that someone else could do better, faster, or for less bread, then you aren't maximizing your economy of effort, nor providing great value for the rate at which you bill your clients. Hey, I get it- the categorical imperative I mentioned above can and should preclude you from sourcing the material facts and evidence upon which you substantiate your arguments to just any old hack. Doing so would be reckless, negligent, and bad for business. And if you don't have in-house investigators or an ongoing, trust-based relationship with a good independent investigator or agency, it's impossible to know whether a given investigator is worth his salt, right?
Wrong. Vetting an investigator is as easy as asking a few open ended questions to verify his ability to conceptualize your strategy to the extent that he can operate proactively, supporting your objectives with facts and evidence. What follows is a framework for quickly determining whether a given investigator possesses the necessary knowledge, skills, and ability to add value to your case.
Frame the Scenario
First, briefly describe a hypothetical situation that is derived from the essential points of a current case you are working or that contains elements common to cases in your field. Don't give too much information, just a brief synopsis outlining the who, what, when, and where of the plaintiff, the defendant, and the allegations/charges.
Add a Pinch of Legalese
To ensure that the investigator has an adequate understanding of the terminology commonly used in legal proceedings, use the language that you normally would in discussing legal matters, as opposed to lay English. If the investigator in question seems unable to respond in kind, or if your statements and questions are met with only a quizzical stare, you may be looking at the wrong candidate.
Solicit a Recommendation
Ask the investigator how she perceives the building of your case. Just as it takes money to make money, it takes information to find information. Therefore, the first thing that an astute private investigator should do is to ask you some questions. Among these, you might hope to hear:
Has your client been involved in any past litigation/criminal proceedings? How about his opponent? Outcome?
Where did the alleged incident take place?
Were any witnesses present?
Identity of witnesses offering testimony (on behalf of both sides)?
How long until the deposition/hearing/trial?
What you are looking for here is an inherent feel for the appropriate scope- what is and what is not significant for the purpose of supporting your case, what constraints you are facing, and what degree of travel, time, and resources will be necessary to deliver what you need. Every case is different. Make sure to keep an open ear for things that you may not have thought of that can augment your strategy. Some investigators are pretty sharp.
Throw a Curve
It is important to verify that the investigator understands the rules of evidence. An easy way to do this is to suggest a method of evidence collection that you know to be inadmissible, such as placing surveillance equipment in such a manner as to violate a subject's reasonable expectation of privacy. If he agrees with your recommendation, you can end the interview and move on to the next candidate.
Note: There is always a way to get the evidence you need in a way that is legal, ethical and admissible. Granted, this may make things more time consuming, and it may require that a silver bullet of hard evidence be replaced with a larger volume of circumstantial evidence. But this is certainly better than being kneecapped by a sustained motion to suppress.
Test Writing Skills
Follow up any telephone correspondence with a few questions in an email. The reply you receive will give you a chance to evaluate the investigator's command of written English. The purpose for this is that - like it or not - correct usage and people's perceptions of credibility are inseparable. You don't want to be embarrassed in court by a report or interview transcript that looks like it was written by a fifth grader. Also - going back to the economy of scale theme - you (or your assistant) shouldn't have to proofread and edit every document you receive. And you sure don't want to inconvenience the people who gave those statements by having them sign subsequent revised drafts. Time is money. So are gasoline and goodwill. All should be used efficiently.
Test Spoken English
For the same reasons that writing is essential, good spoken English is, to say the least, a desirable trait, especially for anyone who will provide testimony on your client's behalf. Fortunately, it is very easy to test a person's command of spoken English in a conversation. Just as you are wrapping up an in-person or telephone interview, make some small talk. Segue the conversation to a topic which requires your prospective investigator to speak with a level of sophistication in terms of vocabulary, syntax, and grammar that is commensurate with the issues to be heard and decided in your case. If the investigator catches on to what you are doing, that's okay. Give him points for perceptiveness and continue with the conversation long enough to make your determination.
Identify any Possible Ethical Issues
Be direct. Ask the investigator whether any past or pending complaints have been filed against her with the state private investigation board and, if so, whether they were substantiated. Ask if any evidence she has provided has been suppressed in court and why. Ask if she has been a defendant in any litigation arising from an investigation she has conducted. It is unlikely that a licensed investigator has a criminal record, as this would preclude the issuance of a license, but ask anyway. Someone who has been a defendant too many times, even though never successfully sued or prosecuted might still present a degree of uncertainty that you are uncomfortable with.
Finally, identify any possible conflicts of interest. Find out if he has ever worked for your opposing counsel or their client. Although professional ethics would ideally make this a non-issue, in reality people's natural allegiances can impact their behavior to an enormous degree. Stereotypes regarding private investigators likely do exist for a reason, but you should take comfort in knowing that crooked investigators, like dirty cops, are the exception rather than the rule, especially in states with licensing requirements and administrative oversight.
Be Up Front about Money
... and demand equitable transparency in return. There are two approaches to this. First, you can tell the investigator what you expect and ask how much it will cost. Ideally, he will estimate the price as if reading an invoice - line by line. If he just throws out a number, ask for an itemized breakdown of the items that add up to that number. If the numbers match the scope and budget you are looking for and the hourly rates aren't outrageous, that's a green light.
The second approach to this is to tell the investigator how much you are willing to allocate to her investigation (in terms of both time and money), and ask what you'll get in return. Again, ask for a detailed description of everything she will do.
Trust your Gut
If you get a creepy feeling when you talk to someone, chances are that other people will as well. Interviewees will be less forthcoming and juries will be less trusting. Face-to-face interaction is often the only way to determine an investigator's disposition and presence, both of which profoundly influence others' perceptions of integrity. Be sure to schedule a brief meet-and-greet with the investigator you are considering, and trust your instincts.
If you are an attorney who would like to spend more time on the strategic aspect of case development, this article was written for you. Outsourcing some or all of your investigative activities will allow you to focus on the things that only you can do. The right investigator is someone you can trust to act autonomously and in line with your case strategy. Choose wisely, and you'll be able to handle more clients, win more cases, and most importantly, help more people than Matlock ever could on his own.