Cases Turn on Facts

How Lawyers can get Better Quality Evidence from Investigators and Gain an Advantage in Litigation

If you stop and think about it, cases turn on facts. Whether or not a plaintiff can carry his burden of proof will depend on the facts. Even where there is a dispute as to which law should be applied in a case, that dispute will be resolved based on the facts. Properly assessing a case, knowing whether to settle it or try it, and, if you’re going to settle it, for how much, depends on the facts.

A lot of information will be obtained through discovery. It is often, however, that which can be obtained outside the discovery process, or by leveraging information that was provided through discovery in order to go beyond the discovery process, that can change the outcome of a case. Litigators who are more sophisticated consumers of investigative services will have the advantage. For that reason, a discussion of three of the most foundational investigative techniques, out of which most other investigative techniques evolve, is warranted.

BACKGROUND INVESTIGATIONS VERSUS LITIGATION INTELLIGENCE

At the outset of any case, a lawyer should want to know about the party on the other side. Since the early 2000s, however, reports purporting to be background investigations have all begun to look the same. This is because too many private investigators have been doing nothing more than going onto an online datamining service, searching a name, copying and pasting the information to their letterhead, delivering it to the client and calling it a background investigation. There has been no analysis of the information, no interpretation of the data.

Moreover, datamining services do not contain all available information and the information they do contain is not always accurate.  This is not to say they are not valuable investigative tools, but they are only that—tools.  The information needs to be analyzed, interpreted and acted upon.

A skilled analysis of the information, along with a skilled analysis of other open source information, can produce an intelligence report of greater value to the litigator.  From there, a more complete investigation might require obtaining copies of records, verifying information and interviewing witnesses.  This is the difference between what some have come to accept as a background investigation and quality litigation intelligence.

Witness Interviews

If, as a trial lawyer, you have been frustrated by background investigations that tell you nothing of value, then you have probably been just as frustrated by witness interviews that answer none of the questions in a case.

A litigator who had just been introduced to me at an event, upon learning that I had an investigative practice, recounted to me some of his previous, less than positive, experiences working with investigators.  He then asked me why most investigators did not seem to understand what he, the lawyer, needed.

From the conversation, two things were clear: 

• First, there had not been a true lawyer/investigator relationship between the lawyer and the investigators with whom he had been working.
• Second, the investigators with whom he had been working were not thinking in terms of proof.

Consider the amount of preparation that goes into taking a deposition or directing or cross examining a key witness at trial.  Interviewing that witness is just as important.  Investigators who are interviewing witnesses need to understand the case so that the questions they are asking can be designed to elicit information that is relevant.

In the context of witness debriefings, if an investigator does not understand the case, then his or her interviews and the reports he or she produces will not contain relevant information.  They will not advance the client’s case, nor will they negate the opposing party’s case.  Imagine a direct or cross examination that does not address any of the issues involved, does not address any of the elements of any of the causes of action, and does not establish any predicate for the later introduction of some other piece of evidence.  That is what an irrelevant investigative report is like.  It is meaningless.  It does nothing to move the case.

To be fair, not every investigator is going to be able to understand all the issues in every case. Likewise, not every investigator will be able to approach a witness without the compulsory power of a subpoena and convince that person to provide information.  And, for that matter, one should not assume that simply because a private investigator is a former law enforcement officer, that professional background alone will make the necessary difference.  What was the former law enforcement officer’s job?  If he or she was an investigator, what kind of cases did he or she investigate?  And how is a lawyer hiring the investigator to know whether the investigator was any good at what he or she did?

To be a sophisticated consumer of investigative services, a lawyer needs to understand the skills involved. By way of example, if I want someone to interview witnesses and get information out of them that will be helpful to a case, then give me homicide investigators or foreign counter intelligence agents, because that is what they do. But, if I want someone who can do moving surveillance, then give me DEA agents, FBI SOG or SSG agents, or, in select cities, narcotics investigators or money laundering investigators, because that is what they do.

Surveillance

On the subject of surveillance, another attorney once asked me the following question, verbatim:  “Why does my investigator always lose the person on surveillance?”  The answer was actually contained in the attorney’s question.

Moving surveillance cannot be done by an investigator, singular. 

To make the point clearer, moving surveillance cannot be done by one guy, wearing a Hawaiian shirt, driving a red Ferrari, bumper locked to the target vehicle.  

Moving surveillance needs to be done by a group of agents with the right skills, the right equipment and the ability to work together as a team.  A good surveillance team can follow a target from point to point to point for hours or days on end.

Done correctly, surveillance is valuable, but expensive.  Done incorrectly, it is a complete waste of money.

Cases turn on facts. Any lawyer can review materials produced during discovery, but the most successful litigators and trial lawyers will be those who are more sophisticated consumers of investigations.