WHY Business Owners & Attorneys Should Utilize PIs
By M. Ettisch-Enchelmaier, B.A. , MSc.
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 "lay person." 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.
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 a 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:
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.
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 reading 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 court house 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 like 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 at 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].
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 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 locate 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, whom 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 in 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,
thePIgroup@yahoogroups.com, 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.
------------