It is agreed that the findings at times may weaken a case, but an attorney is better prepared knowing all the facts should the opposition also discover those weaknesses and bring them up in court. On the other hand, there is a good chance that the little-known facts may strengthen the businessman’s case in court. Therefore this chance should not be given away lightly.
Attorneys, even doing informal interviews tend to act formally. They have not been trained to chit-chat and build a rapport with blue collar workers. Furthermore, they cannot utter questions at the (potential) witnesses’ level without appearing demeaning [3, 6, 11]. Indeed, PIs frequently experience the results of this attitude.
One of the comments quite often uttered by attorneys is as to why the witness has supplied the PI the information needed and not to the attorney in question. The reason is obvious. A good investigator will put a witness at ease first [11] by coming down to the witness’s level by talking with him for 30 minutes or so about something the witness may be interested in. Then when the investigator begins his interview the witness is relaxed and feeling he is on the same level as the PI. At that point, the witness generally tells the PI everything he needs to know [3, 12].
Some PIs and process servers do not mind that attorneys first have their “in-house investigators” or paralegal staff attempt to find the information needed. On the contrary, the PIs may earn more when an attorney’s staff first attempts to find the target. After having dispatched servers to two or three addresses developed by the attorney’s in-house investigator, proving to be out of date or completely wrong, the professional process server eventually ends up handling both the location and the final serve. Furthermore, by the time the PI/process server is bestowed with the task, it becomes a rush case and the attorney, being desperate to get the paper served on time, is ready to pay a much higher fee than usual without much discussion [8].
Other PIs or process servers do not agree. They prefer to get the cases not meddled with by others. The usual cheap and easy sources have already been contacted and “used” to no avail. They cannot be re-contacted by the professionals who could probably have employed the sources more resourcefully and consequently, most likely more successfully. Therefore, much more difficult and costly sources and more work and time must be invested to the detriment of the businessman client to find other ways and means to still successfully handle the case.
Furthermore, an improperly handled investigation, such as an ill searched address, can put an attorney in jeopardy and cause a client to lose his case. About a decade ago a PI had a summons to serve for an attorney on a Janice Williams (an assumed name) in the framework of an accident case. The PI went to the address the attorney’s in-house investigator had developed and found an individual with the same last name. The PI told Mr. Williams that he had a summons to serve on the latter’s wife Janice. Mr. Williams stated that he was not married let alone to a Janice, nor did he know anything whatsoever of the accident from which that suit had arisen. Trusting his professional instincts that the individual was honest, the PI left with an apology.
The next day the PI contacted the attorney and informed him about the incorrect address. The attorney checked with his secretary who had located the address and she could not understand what the problem was, maintaining that the address was the only one she could find with the name “Williams” in that area. The PI made the attorney aware that his office had almost forced an uninvolved party to defend themselves in a lawsuit. It is well known how that would impact on the plaintiff’s attorney. It was the last skip or search the secretary ever was asked to do and the PI gained a new client [14].
Another reason why an attorney should not undertake an investigation himself is not to conflict himself out of the case when he becomes a fact witness. He may also lose his work product and attorney/client privilege when he has to testify as a fact witness since this is very detrimental to his client [15]. By not undertaking the investigations himself the attorney avoids the awkward situation that if he interviews the witness and the witness later recants, who should he call to the stand to impeach the witness?
Many attorneys do not place much importance on knowing a PI’s credentials or history of success and sources, nor do they care whether the PI they use crosses the thin line of legality. They just want “information.” They do not realize that with this attitude they can jeopardize their case, even wind up in court along with the investigator who oversteps the boundaries of appropriate behavior. Fearing just that is the greatest worry for some lawyers according to Brian Rishwain, a partner in the Los Angeles law firm of Neville, Johnson & Rishwain.
One of Mr. Rishwain’s clients sued the opposing counsel and their investigators for invasion of privacy, claiming that the investigators had already done so by misrepresenting their identity to secure information about a real estate dispute. A California appellate court ruled that indeed there was an invasion of privacy. The investigators were also sued on the grounds that a private investigator is effectively an agent of a lawyer and his client. In order to avoid those problems, Katsh [6] does not leave anything to chance when he hires an investigator.
Duli [16] and Brown [17] describe in detail what a businessman or his attorney should consider and do before hiring a PI in order to check his integrity and competence. Katsh [6] also acts along the maxim that a lawyer involved has to maintain complete and utter control over everything that the PI or his company do. Dailey [18] and Moro [10] go even further by regarding recommendations from other attorneys using a PI to be of great importance, while they rate the word of mouth as being by far the best recommendation. Not only is a PI’s integrity of great importance, but also his competence and availability of sources to get a job done. To ensure the quality of the investigation most of the investigators Moro [10] uses are former police officers, who have formal training and are already familiar with the rules of evidence.
According to the author of this article, former police officers may be the just the right investigators for the jobs Moro has to offer, but like in other professions there are PIs specializing in one field of activities while others specialize in other fields, e.g. a top surveillance specialist may have no knowledge of how to trace a person online. Just as a medical or legal general practitioner does in directing his patients or clients to specialists when the case is beyond his scope, the same is true with an ethical and seasoned PI. When he sees that an investigation is beyond his skills after having learned what is needed or in a later stage of the investigation, he will refer the case to the PI specialist, having secured his client’s agreement first.
The supervision of a PI by the lawyer in question is also crucial, especially since the PI is a vital part of the legal team. If the attorney representing the businessman has the full supervision of the case he can also warn the PI of any legal snares thus ensuring that the PI ’s findings will be valid and not jeopardize the case.
In recent times there is a trend revealing companies or universities, insurers or others needing an investigation done calling upon a law firm to do the investigations instead of turning to a professional investigator directly to get better results with many insightful notes and at a much lesser price. However, this trend probably originates from the wish to be legally on the safe side at any cost.
This article was derived in the main from a discussion which took place in an online private investigators’ restricted group in September 2001, [email protected], and the article by Lisa Stansky: Practice Strategies/Focus Litigation, Staking out a Detective, http://www.abanet.org/journal/sept01/focus.html of September 2001.
Additional Sources:
- [1] Jenni Bergal, , Job Market, More lawyers enter cyberspace, in
- Knight Ridder Newspaper, Sunday, August 26, 2001,
- http://www.infowar.com/law/01/law_082701a_j.shtml
- [2] Melody Ermachild, a PI in Berkley, in Practice etc. by Lisa Stansky,
- http://www.abanet.org/journal/sep01/focus.html
- [3] Greg H. Walker, PI and Attorney at Law, 03 Sep 2001,
- [email protected]
- [4] Jean LaRue Doublecheck, 01 Sep 2001, [email protected]
- [5] Mark Bourgeous, 3 Sep 2001, [email protected]
- [6] Salem Katsh, a partner of the law firm Shearman & Sterling in New
- York City in Practice etc. by Lisa Stansky
- [7] Pamela Sween, PI, 3 September 2001, [email protected]investigations.com
- [8] Michele Dawn, PI, 11 Sep 2001, [email protected]
- [9] www.abanet.org
- [10] Diana Moro, a member of the law firm Dukin & Associates in
- Philadelphia in Practice etc. by Lisa Stansky
- [11] Jennie Kmiecek, PI, 3 September 2001, [email protected]
- [12] Ermachild, PI, in Practice etc. by Lisa Stansky
- [13] Vivek Raghuvanshi, PI, 3 Sept 2001, [email protected]
- [14] Bob Hrodey, PI, 03 Sept 2001, [email protected]
- [15] Jim Bearden,, TCI and PI, 4 Sep 2001, [email protected]
- [16] A. P. Duli, PI, [email protected].org
- [17] Teri Brown in Joseph Culligan’s Newsletter, November 01,
- [email protected]
- [18] Dianne K. Dailey, a member of law firm Bullivant Houser Bailey in
- Portland, Ore. and a past chairperson of the ABA Tort and Insurance
- Practice Section in Philadelphia in Practice etc. by Lisa Stansky
- [20] Jon Lane, PI, 4 Sept 2001, [email protected]
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