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One local attorney urges clients to hire a private investigator by saying, “You can either pay $5,000 to investigate or $50,000 to litigate.” The meaning, of course, is that if you can develop facts and witnesses on your side and discredit witnesses on the opposing side, you have a chance of getting a favorable settlement in a civil case or a favorable plea bargain in a criminal case without going to trial. Attorney F. Lee Bailey put it this way: “Hard evidence, rather than abstract legal argument, is what decides most criminal cases.” Even though facts make or break a case, law schools traditionally do not teach students how to investigate their cases. And even when they have the knowledge, lawyers vary in their ability, inclination, and time to investigate their own cases. Some enjoy getting out to knock on doors. There are others who have trouble finding an address in a telephone directory, and still others who are capable, but don’t want to spend their time doing it. P.I.s can assist attorneys in dozens of ways, from interviewing witnesses to finding evidence, from conducting internal corporate investigations to locating assets, from investigating employee misconduct to conducting surveillance, from investigating opposing witnesses to checking out your own. The right private investigator can help make your life easier and turn your losing cases into winners and your winning cases into bigger winners. Conversely, the wrong investigator can antagonize witnesses, embarrass you with your client, provide you with bad information, waste your money, and raise your malpractice premiums or get you in trouble with the bar or with the law. A good rule of thumb is to hire a private investigator when you don’t have either the time, the sources, the know-how, the resources, or the equipment to get the information you need. You will also want an investigator to conduct your interviews if there is a chance you will need someone to testify, either in your case-in-chief or, more likely, as an impeachment witness. If you’ve interviewed an adverse witness alone, you can’t very well get on the stand to impeach him if he changes his story — and if you do, you will probably have to withdraw from the case. And in the case of witnesses hostile to your client, an investigator is often in a better position to gain an interview than you are, as the person’s attorney. And even if you have the time, you might not have it at midnight, when the police officer you need interviewed comes on duty. Here are a few common and not-so-common ways that attorneys have used private investigators, as well as some problems to watch out for when hiring an investigator or conducting your own investigation. BACKGROUND CHECKS A common assignment for investigators is to investigate opposing witnesses in the hope of discrediting them. Several years back, I represented a major importer of marijuana whose partner in crime was working as a lawyer lobbyist for a trade association. My client had known his partner for a decade, remembered when he went to law school, and even remembered attending a party for him when he passed the bar. Later, when both were arrested, his friend decided to become the main witness again my client. In that case, it almost seemed a waste of time to check his educational credentials. Yet when I did, it turned out that he had never gone to law school and had never even finished undergraduate school. The government, who had also believed he was a lawyer, could no longer use him as a witness, and my client was able to plead to a misdemeanor instead of a 20-year felony. Sometimes it can be as important to check out your own witnesses as the opposing ones. I learned that the hard way in a criminal case early on in my career. The lawyer I was working with was representing a man charged with several rapes, against whom there was overwhelming evidence. As a character witness, we decided to use an angelic-looking 22-year-old co-worker of his, who testified how kind and supportive he was and how he helped her get into the electrical union. Because of her appearance, age, and demeanor, neither the lawyer nor I thought to ask her if she had a criminal record. I learned an important lesson — never assume anything — when the prosecutor got up and blew our character witness away by pointing out she had been convicted of two felonies in Florida at age 19. Background checks are important in other contexts as well, from checking out corporate executives, to checking out plaintiffs for fraudulent patterns, to checking the backgrounds of potential arbitrators, to checking out employees in negligent hiring cases. You may remember when famed Florida attorney Roy Black hired several private investigators to dig up information on the background of William Kennedy Smith’s accuser in his 1991 rape case, but few remember the case in which Black defended his law partner for shooting a neighborhood dog. Black hired a private investigator to dig up information on the dog’s past behavior, breeding, and pedigree, took aerial photos of the crime scene, and arranged for a top pathologist to conduct an autopsy. The result was an eloquent attack on the dog’s character and the felony charge against his partner being dropped. LOCATING PEOPLE One of the most common uses of P.I.s is to find missing people, be they missing witnesses, heirs, debtors, relatives, or, yes, even missing clients. Finding a missing witness can mean the difference between winning and losing a case. And sometimes that can be a real challenge. I tracked down witnesses in major cases where the only descriptions were “a Spanish-speaking migrant laborer working in an apple orchard in California,” “a homeless drug addict who had once worked as a laborer in Virginia,” and “a woman in Salisbury, Maryland, who had had a prophylactic mastectomy.” In every one of these cases, that individual turned out to be the critical witness in the case. Finding them and getting them to testify at trial made all the difference. Investigators can also come in handy when someone is evading service of process. I recall one case where a witness had been evading a deposition subpoena for months, even to the point of living at someone else’s home. The attorney decided to hire me to try to get the person served. Waiting on the road where the person was known to travel, I got lucky when the person’s car got stuck behind a fender bender. When she rolled down her window to see what happened, she was served. FINDING EVIDENCE One of my most satisfying cases involved finding a key piece of evidence during an ongoing trial. The defendant was a retarded man wrongly charged with rape. The case looked open and shut because the defendant was known to the complainant. But his lawyer and I were convinced he was innocent and believed that the complainant had a vendetta against the defendant’s mother. We did not find out until she took the stand as a rebuttal witness at trial that the complainant’s daughter was going to corroborate her story. We felt she was going to lie, and hoped that her time card at her job would show she had been at work that day and not with her mother. When the daughter took the stand to corroborate her mother’s story, the lawyer I was working for sent me off in a cab to the hotel where the daughter worked, to get her time card for the day in question. When I got to the hotel, I grabbed the manager. He grabbed the time card. We raced back to the courthouse in a cab. I ran into the courtroom and thrust the time card into the hand of the lawyer who, by this time, was cross-examining the witness and being admonished by the judge for stalling. The time card proved that the witness was a liar, and the whole case unraveled from there. After a week-long trial, the jury took 10 minutes to acquit. Afterward, several jurors said the scene had made them feel as if they were in an episode from “Perry Mason.” Use of surveillance to detect fraud in personal injury or workers’ compensation cases is legendary. In a 1993 Wyoming case, an insured man had collected a million dollars on a disability claim with the Northwestern Mutual Life Insurance Co. before the insurance company terminated his benefits, after a private investigator’s videotapes revealed him jogging, hiking, mountain climbing, performing mechanical work, and unloading wood from a truck. The insured sued for bad faith and the insurance company counter-sued for fraud. In April 1995 in a federal District Court in Cheyenne, a jury found the insured guilty of fraud and ordered him to return the million dollars to the company. Another, less common use of investigators is to help try to prevent an indictment. If you believe your client is innocent, be it an individual or corporation, an investigator may be able to come up with evidence to prove it, and your witnesses may be able to go before the grand jury and try to prevent an indictment. I had such a case involving a local college professor who had been falsely charged with sexual assault by his daughter’s friend. The attorney hired me to investigate the matter, including the accuser’s background and the logistics of the house. A thorough investigation and two polygraphs later, it was clear to us that the charge was made up by an emotionally troubled teenager. Yet we knew that if the professor was indicted, it would mean a leave from his job, bad publicity, and a ruined reputation, even if he were later acquitted. We found out the date the case was being presented to the grand jury, went down to the courthouse ourselves, and, in a somewhat novel move, requested to the grand jurors that our client, his daughter, and I be allowed to testify. They agreed to hear us, and the result was that our client was never indicted. Months later, social services investigated the case and determined that the charge had been unfounded. WITNESS LIAISON Treating witnesses with respect and consideration can often make the difference between a witness who testifies reluctantly, making you pull out every word, and one who testifies fully, in the most animated and helpful way possible. Seeing a horrible accident or watching someone get burned or murdered is not something people generally want to remember or have to relive. Sometimes it’s easier to say they don’t remember. Having an investigator go to a witness’s home for an interview, giving a witness advance notice of a trial, returning a witness’s phone calls, and providing moral support to testify, makes the witness far more comfortable and inclined to cooperate than having an attorney interview them by phone, slap a subpoena on them the week of their family vacation, and never talk to them before trial. You may be too involved with other aspects of trial preparation to make sure your witnesses have a way to get to court, but your investigator, who may have established some rapport with the witnesses, can make those calls for you. This is particularly helpful when you have a fearful or reluctant witness or one whom the other side has tried to intimidate during a deposition. TIMING OF INVESTIGATION The best time to hire an investigator is early, before civil litigation commences or before an indictment in a criminal case. If the case is a contingent representation, you may want to have an investigator help evaluate the case before you decide whether to accept it. An early investigation is critical for many reasons. Witnesses and evidence can disappear. Memories fade quickly. I recall a multimillion-dollar fire case where there would have been no case had we not been able to get our hands on the one remaining small charred piece of a space heater, which could have easily been thrown out with the debris. Likewise, after an auto accident an insurance company can take the damaged vehicle before you have even had it examined or photographed. Conducting an investigation early makes it easier to interview potential witnesses. Once suit is filed, or even threatened, they may be forbidden to talk by superiors or by opposing counsel. And once litigation commences, neither you nor any of your agents can ethically contact adverse parties about the matter if they are represented by counsel. ETHICAL AND LEGAL ISSUES When using an investigator, you should be aware of both the ethical and legal constraints on the P.I.’s conduct. Some potential problems are obvious. If your investigator harasses a subject, spreads false rumors about him, or pries illegally into his private life, a charge of defamation, invasion of privacy, or even stalking could follow. Others dangers may not be as obvious. An investigator who goes too far in cultivating witnesses could generate allegations of bribery or witness tampering. Caution must be taken in making payments to compensate a witness for expenses or lost time from work. Though perhaps innocent, such payments can backfire at trial, especially if they seem too generous. Having an investigator testify in court can also backfire if that person has ever misrepresented himself or herself in the course of the investigation. The following are some common issues that you or your investigator will confront while conducting an investigation: • Obtaining confidential records. A major issue in conducting investigations is the use of confidential records. Many investigators have access to confidential records and use them regularly to obtain information. In fact, one of the reasons to hire an investigator may be to get such material. However, you must be aware of a myriad of state and federal privacy laws that have flourished in recent years. These include the Fair Credit Reporting Act (regulates distribution of consumer reports, including credit reports), the federal and state Driver’s Privacy Protection Acts (regulate the release of motor vehicle information), and the Gramm-Leach-Bliley Act (prohibits obtaining many records, including customer information from financial institutions, through false pretenses). If you or your investigator violates those laws, you could wind up facing a civil suit or even criminal penalties. Some privacy laws have penalties only for the person who divulges the confidential information. Others, like the Fair Credit Reporting Act, provide penalties for the persons obtaining the information. It is also important to understand the federal and state Freedom of Information Act laws. With such knowledge, you can determine when you really need an investigator, and when you can request information yourself. The laws governing access to, and protecting the confidentiality of, records differ from state to state. Some records — such as the criminal records maintained by the Federal Bureau of Investigation’s National Crime Information Center — are genuinely closed by law; others are just closed by the practices of the record keepers, without any legal grounds. Another area of concern regards the taping of telephone conversations. In the District of Columbia, in Virginia, and in 37 other states, it is legal for a party to a telephone conversation to tape that conversation. Maryland is one of only 12 states that require the consent of all parties to the conversation. In Maryland, not only will your tapes be inadmissible in court, but also you may be charged with a felony and be subject to civil penalties, as famous Clinton-era defendant Linda Tripp found out. It is illegal in all jurisdictions to record calls in which one is not a party. A state-by-state listing of laws on taping can be found at www.rcfp.org, the Web site of the Reporters Committee for Freedom of the Press. You must also know the position on the state bar where you practice regarding surreptitious taping by attorneys. Even where it may be legal to tape, it may be prohibited by the Legal Code of Ethics. • Communicating with opposing parties. A particular problem for attorneys and the investigators working for them is the disciplinary rule barring attorneys from communicating on the subject of litigation with a party known to be represented by counsel. This disciplinary rule can greatly hamper an investigation, while serving to protect wrongdoers and prevent the legitimate detection of fraud. An example of this involved a fraudulent workers’ compensation claim. A private-duty nurse sued a man whose home she had worked in. The nurse claimed she had fallen and hurt her back. She said she could not work anymore. The attorney representing the defendant suspected the claim was a fraud, so she hired a private investigator. The investigator decided to pose as a person wanting to hire the nurse to care for her father. She taped the employment interview in which the nurse not only said she was available for work, but also offered the names of recent clients as references, and said she had no health problems and would have no trouble lifting the patient. It was a winning investigation, and one which the attorney had approved. Because of the investigator’s efforts, the employer’s attorney won the case. Justice prevailed. Nevertheless, the nurse’s attorney filed a complaint with bar counsel, alleging a violation of the disciplinary rule barring communication with adverse parties. Although any other result would have rewarded a fraud, bar counsel investigated and disciplined the attorney with a private reprimand. • Video surveillance. Video surveillance is another sensitive issue, one that has generated cases of trespassing and invasion of privacy. Surreptitious videotaping can be a powerful tool in court or in settlement efforts. However, it can also backfire, causing jurors to feel that your actions involved too great an invasion of privacy and, therefore, causing them to become angrier with you than with the person filmed. A good rule of thumb is to use surreptitious videotaping only if you have the irrefutable goods on someone. Refrain if it is not a knockout punch. HIRING AN INVESTIGATOR If you decide that your case could benefit from the services of a professional investigator, ask for referrals from fellow attorneys. Some of the best investigators don’t advertise, preferring to get business strictly by referral. It is also a good idea to find out how long an investigator has been in business. You want to make sure the investigator you hire will be around when you go to trial. If you decide to use a large agency rather than an individual investigator, meet the investigator who will actually be doing your work and find out about that person’s credentials and credibility. Make sure the investigator you hire is licensed, although that is no assurance of quality. Some states, such as Virginia, require an educational program to obtain a private detective agency license. Other states, such as Maryland, require a certain amount of experience. In some jurisdictions, where a license is merely a revenue-raising device, nothing is required other than paying the license fee and not being a felon. You should know the investigator’s educational and professional credentials, particularly if you expect that person to be a credible witness at trial. Likewise, if an investigator has misrepresented himself during the course of an investigation, his credibility before a jury will be severely damaged. An investigator who understands the law is more likely to know how to handle these issues and less likely to run up a bill going after useless or inadmissible information. Remember, your investigator is an extension of, and a reflection on, you. Insist on a written fee agreement with your investigator, as well as written reports as the case progresses. If you have a budget in mind, find out in advance if the investigator believes the work can be done within that budget. Decide whether you want to contract with the P.I. or have your client sign the contract. If the investigator works directly for you, it is more likely that the investigator’s findings will be considered privileged as work product. When discussing a case with a new investigator, be clear about how you want things done. Prepare a memo outlining your project and goals. Some attorneys prefer to disassociate themselves from the investigation and give complete discretion to the investigator to devise a strategy. Others feel strongly that their investigator should do nothing they themselves would regard as unethical. For example, some attorneys believe that investigators should always identify themselves and whom they are representing. Others are comfortable with more undercover efforts. Make it clear to your investigator how you feel. Finally, be realistic. Real private eyes, unlike their television counterparts, cannot solve your most impossible cases in 60 minutes. Susan Giller has been a licensed private investigator in the D.C. metropolitan area since 1981. She is also an attorney licensed to practice in the District, Maryland, and Virginia, but confines her practice solely to providing investigative services. She is based in Bethesda, Md.

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