By using private investigative experts, business owners and executives can help improve their odds to win a case by collecting any known bits of information about their opponents. If a businessman and his attorney contemplate hiring a private investigator for assistance in their cases, they should also forget such PIs as depicted in fiction or the media.
Often much information is buried in traditional as well as electronic files and in human memory. It must be “unearthed” and presented to the private investigator bestowed with the task to collect or prove the existing data as an independent third-party.
In the same way, as in many walks of life, there are crafty “do-it-yourself” people, even they may need expert help from a certain stage on, let alone a “layperson.” And the investigative expert is the PI who should be called in on a case. If an attorney is also involved in the appertaining case, his advice should be sought and also be kept informed until the end, since he may need more information than envisaged by the businessman due to the judicial angle of the case.
In recent times more and more attorneys refer the investigation to PIs. Criminal and civil attorneys and especially attorneys specializing in “cyberlaw,” i.e. the Internet, have a better insight in this problem and are more ready to use an outside professional PI to improve the possible results they would have obtained through an in-house investigator [1]. Attorneys should use PIs as their arms and legs [2] so to speak.
Some reasons as to why attorneys should leave the investigation to PIs, the professional investigators:
- First and foremost it is not cost-effective for attorneys: PIs are much cheaper than attorneys yet get better results.
- Attorneys’ knowledge of investigative sources and resources is limited.
- Attorneys are trained to find already existing laws and less in finding persons and facts.
- Their paralegal staff often lack time to execute proper investigation.
- Attorneys must divulge which side they represent, not so a PI.
- Attorneys may jeopardize their case when being questioned as a witness.
In most instances, a business person as a client has only a certain amount of dollars to spend on a case, yet his attorney wants as much of the client’s dollars he can get. Moreover, no client wants to pay an attorney’s higher fees when he can get a PI to do the job for a fee ranging between $40 to $75/hour, and a more qualified investigation at that [3].
It is not cost-effective for an attorney to undertake his own investigation. An attorney’s billable time averages in $150 – $250/hour or even higher [2]. His time is more profitably spent working on other cases and leaving the low-cost mean work to the PI, the investigative expert. In the medical profession, for example, a surgeon comes in on a case only after some other doctors, laboratory and x-ray technicians have diagnosed the problem and submitted their findings to the surgeon. The same applies to any good lawyer. The key to any profitable business is knowing how to get the job done well at the lowest possible cost which often also means to delegate the work to the person who can do it fastest, most thoroughly and accurately [4]. It is known that some law firms seek to keep every billable hour to themselves by various methods, e.g. doing their own investigation or have their staff do it for them because they firmly believe it to be less expensive employing their staff instead of using an outside PI [3].
One of the main topics, when an attorney discusses a case with a PI, is costs, costs, costs. Next is the time element as to how quickly the PI can get the case solved by obtaining the information sought for. In one instance an attorney negotiated the PI’s billing rate from $75.00 down to $50.00 per hour, stating that he had a tight budget. Since the PI had some time on his hands and the case appeared to be a simple investigation he accepted the low hourly rate [8]. Quite frequently the PIs get instructions from attorneys not to exceed the number of operatives in any of the cases in question, e.g. in a multimillion-dollar liability claim where the attorney billed over $100,000 to his client and the sum the PI had at his disposal was not to exceed $5,000.
Often an attorney will call a PI in on a case at the last moment, needing the results no later than the next morning, having tried already in vain to get the information through his own or his staff’s efforts. Attorneys doing the investigations they need themselves or using an “in-house investigator” appear to use resources available on the Internet for free or database services such as “PublicData.com” believing that if they use a good database like the American DBT/ChoicePoint, the provided information already recorded in the database or gathered on their request is true, accurate and up-to-date [3]. Rarely do attorneys talk with their peers about databases, timeliness, accuracy, etc. to improve the value and accuracy of the information gathered.
Not so a seasoned PI. He, on the contrary, knows how current the information is of sources such as databanks and directories.
It is quite frequent to a large extent that in-house investigators or paralegals do not really care how current a piece of information such as an address is. If they get a newer address, or when failing to find a newer address which still may not be the current one, they are often of the opinion that they have well carried out the investigation needed for the benefit of the client. Attorneys’ knowledge of investigative sources and resources is limited, in the main because they have not learned such talents in law school [3,6]. The same applies to businessmen or women, even those having gained an MBA degree. Not so a seasoned PI. He, on the contrary, knows how current the information is of sources such as databanks and directories. The information may be outdated by months or even years. A PI is aware in most cases as to how the data is gathered, processed, and resold and how long the lead time is for many of these steps.
An example as to how databases work: If an investigator does not find the information he searches for (the technical term being “gets a hit”) while looking for Bill Smith at 1234 W. Main, Houston, Texas, he does not give up but tries the address at 1234 West Main, Houston, Texas and may be successful in finding the subject. Similarly, he may search for Trinh Thi Doung and may not get a hit, but perhaps is successful with Doung Trinh or Thi Trinh Doung, etc. or Bob Johnson may be found perhaps under Bobbie, Bobby or Robert Johnson [3].
Another possibility, still legal in most American states but hardly in overseas countries is to find a person by an automobile tag or license. For example, the target is John Birch (an assumed name of course) who used to live at 150 East Lincoln Boulevard, Austin, Texas. He no longer lives there the attorney informs the PI, but is needed as a witness the next day. So the PI searches as to who owned the vehicle before John Birch. It was Larry Birch. Consequently the PI telephones Larry Birch learning that he is John’s brother. Five minutes later the PI is talking with John Birch [3].
Admittedly these are rare examples of how easy it is to find a person or skip (a technical term for a person no longer living at the known address having left without supplying a new one). Attorneys simply do not normally understand the whole range of sources and resources of information available. Most attorneys believe it is easy and simple to look something up on the internet, that there is no difference in the method of searching for information than looking up cases and laws. Since their staff are trained for such, they can look up the facts too. Many attorneys forget the analysis to be done on facts developed so as to get the right facts in an understandable and usable manner [3] by also being able to read between the lines [13].
In one instance a PI was given a case and he wanted to double-check the results, just to be on the safe side. While reviewing the file the PI found that the attorney had sent the in-house paralegal investigator to the courthouse across the street to get some records. The attorney’s billing rate was $105.00 per hour, and it took 2 hours to find the information needed. The PI found the information online in no time at all. Then the PI talked to the paralegal. The latter’s pay was $22.00 per hour and had to keep at least 80% billable. This goes in line with ABA [9], a leading attorneys’ association, advising that the billing schedule should be 1/3 for the employees, 1/3 for the overhead, and 1/3 for the partners’ profits of a law firm [5].
It is well known that most of the legal secretaries and paralegals simply do not have enough time left to conduct a thorough investigation besides getting all the typing, briefing, and case preparation work done properly.
Attorneys are bound by their code of ethics to disclose which side of the case they represent. PIs may interview witnesses without ever saying who the clients are and are frequently able to get information from people who would be openly hostile toward an opposing counsel. If a witness is represented by counsel a PI may not communicate with that witness, unless it is with the explicit permission and in the presence of the witness’s counsel. There have been attorneys disbarred because their PIs have committed this ethical violation.
Attorneys are also aware that in many cases if they were to investigate they might have to go to the rough side of the town to see a witness at 10:30 at night to interview him. It also makes little sense to send lawyers or support staff to sit outside a subject’s door for five hours on an investigative mission [3, 11]. An important feature, especially in such cases, is that a seasoned PI can blend like a chameleon in the surroundings, while most attorneys cannot or will not be able to become inconspicuous [6].
However, most attorneys believe that they are the best in asking questions because of their training in direct examinations, cross examinations, re-direct, depositions, interrogatories, etc. and besides, they are so brilliant at case analysis they know they can see the forest for the trees. But while they may be seeing the forest for the trees, a PI is often seeing the mountain from the little rocks and boulders [3]. Here lies the difference between the formal versus the informal interview technique.
When an attorney begins an interview he acts almost exactly as he does in a deposition. He takes a couple minutes of being very friendly to the interviewee hoping, mostly in vain, to be able to put the interviewee at ease, but then he launches into questions that have been carefully laid out on a yellow pad with a line down the center so that he can write the answers on the other side [3]. No matter what the personality of an attorney is he is still an “attorney” in his way of thinking, demeanor, and body language. The very word “attorney” tends to make people nervous and wary to talk to an attorney [14].
Furthermore, an attorney does not usually ask questions to find a broad range of facts, but more to find points that would tend to prove each element of his cause of action which he has already outlined in his mind. For example, he may ask a lady whether she saw the red car approach the intersection; whether the car stopped or entered into the intersection; and whether she saw the color of the light that the car was supposed to obey. But in most instances he would not think to ask the lady about any possible eye problems of hers or any eye treatments around the time of the accident, and if she wears glasses and had them on at that significant time. Most attorneys aim is to get facts to prove their elements, and they do not tend to worry about whether the facts could be tainted by the lady’s vision [3].
