Letter from Houston
[Editor’s Note: Jeff Wax is a Texas mitigation specialist and criminal defense investigator who specializes in defense of indigents facing the death penalty. He is also licensed in Maine, where he began his career with the Maine State Police.]
Professional Investigators: How to Choose One, and How to Use One – Effectively
F. Lee Bailey began his career as an investigator. Undoubtedly that experience helped him in his more noteworthy vocation. Most lawyers realize the need for a superior investigation but actually deal with this vital aspect of their work with the same enthusiasm they show towards going to the dentist. Perhaps this reluctance is due in part to the unsavory mystique, which has relentlessly haunted the professional private investigator since the days of Sam Spade and The Maltese Falcon.
Nearly all attorneys who have actively practiced law in the state of Texas for a few years have no doubt met a private investigator in one situation or another. Oftentimes, he or she has been the person hired to assist in the discovery process in preparation of cases for trial. In many instances, however, within the adversarial process, the opposing side has employed an investigator who successfully uncovered more information than the lawyer who relied upon his own resources and the client’s assistance in establishing the facts. Thus, this valuable support to the active practitioner can be of inestimable value when dealing with complex facts. This is particularly true in a case that requires obtaining answers to questions that the average attorney would be unable to ascertain due to time constraints, lack of contacts, or even because of not knowing where to look.
Some law firms have turned over investigative responsibilities to paralegals, expecting them to abandon their LEXIS for a trench coat. Although paralegals may have other skills that will allow them to work well with investigators, in general, they do not have the resources available to the qualified, licensed professional investigator nor the “street sense” that professional licensed investigators have garnered from many years “in the trenches.”
Investigative methods have changed exponentially over the years. Many investigators now routinely use sophisticated technology as a means of retrieving secondary source data in almost every investigation. Access to this information is available only to those investigators who have met stringent requirements and have been properly vetted. However, many lawyers are unfamiliar with the information these resources yield. For example, the Social Security Number has grown increasingly important in recent years as an investigative tool as have the various methods used in obtaining this valuable data.
Every attorney should become familiar enough with basic investigative techniques to properly and cost-effectively manage the investigation of their cases. In all but the most conventional cases, the attorney should take the time to schedule a face-to-face meeting with the investigator during which s/he should seek constructive input from those of us who are proficient in fact-finding. Simultaneously, s/he should provide the investigator with all available relevant information including documents, reports, and statements, which the investigator needs to read, evaluate and assimilate before their investigation commences. Failure to provide such relevant information will guarantee a duplication of efforts.
Just as attorneys specialize, so do investigators. It is important to ensure that the individual whom you hire to conduct your investigation has the technical competency, objectivity, intuitiveness, personality, creativity, and the requisite background and skills to design and carry out the type of investigation that will provide you with substantive information. You want an investigator who will “leave no stone unturned.” You should understand that some investigative agencies might be unsuitable for your needs because they lack the knowledge to properly and effectively conduct a law-related investigation. For that reason, many large law firms employ several different investigators. I cannot stress enough that it is essential to find the investigator with the right qualifications every time you make a referral. This is the key to obtaining results that are efficacious to your case.
Taking the time to assiduously evaluate your own needs before locating and interviewing a qualified investigator will be well worth the effort. Simply stated: exercise due diligence in the selection process. Undoubtedly, the most desirable quality an investigator must possess is honesty. When an individual’s credibility has been called into question it should send a message to you to become concerned with the integrity of the information you have received, not to mention the desirability of your investigator as a potential witness in your case.
When you decide that a certain case warrants the use of an investigator, you should consult with your colleagues if you are not certain whom to engage. More often than not, other attorneys will share the names of competent investigators whom they have employed in the past, and can objectively critique those investigators’ respective levels of proficiency, thoroughness, and overall quality of work. It is advisable to undertake this process when hiring a professional investigator just as it is when employing any other expert witness.
You are responsible for recommendations made to your client and for the ultimate selection of an investigator just as you are for the direct legal services you provide throughout your involvement in the case. Accordingly, it is to your benefit to interview a prospective investigator before deciding whether you make a referral to him or her. In evaluating your investigator, you should review his/her experience in serving other attorneys. Ask for references. You should also ask for a sample of the types of reports s/he might furnish you and review them for content, quality, objectivity, attention to detail, grammar, clarity of thought, insight, and especially usefulness.
Because the investigator may be working with and for your client, attempt to assess what kind of impression he or she will make upon that client. A negative impression may undermine your relationship with your client.
The selection process is complete when you have successfully matched your firm’s long-range needs with the investigator’s capacity to undertake wide-ranging, creative discovery.
When Do You Use An Investigator?
Following are several cases from our files, which illustrate the value of an investigator’s services.
An individual from Georgia had allegedly absconded with a large sum of money entrusted to him by his employer. The employer’s attorney contacted me when he believed the subject might have moved to an area within the state where I provide investigative services. Although there were active warrants for the suspect’s arrest and the Georgia authorities were willing to extradite, law enforcement agencies were not particularly interested in continuing to look for this individual.
After determining that local law enforcement agencies had little, if any, substantial information to offer, we proceeded with our investigation. We uncovered a trail of assumed names and fictitious addresses left by the suspect to confuse authorities. Over time, however, using myriad investigatory resources we determined the suspect had moved to San Pedro, California. We subsequently ascertained his place of employment and his current address. Based upon our information California authorities arrested the suspect on a fugitive warrant and he was returned to Georgia to stand trial and ordered to make full restitution to his former employer.
In another instance, I became involved in a conspicuously dubious rape case. In this matter, the state had charged the defendant with aggravated sexual misconduct based solely upon the statements of the complainant and her female companion who had been with her and the defendant at the time of the alleged incident. The complainant stated the defendant at gunpoint forcibly raped her on their first date.
My investigation revealed that the complainant and defendant had been engaged in an intimate relationship for at least a month before the alleged incident. Pursuantly, we located several corroborating witnesses who refuted the complainant’s allegations. Further, we unearthed information about the complainant being involved in an automobile accident on the date of the purported crime in which she was driving the defendant’s vehicle. Since he did not have insurance, the defendant asked her to pay for the damages to his car and the owner of the other car involved in the collision. When she refused, he threatened to reveal the details of her promiscuity as well as that of her companion’s to their parents. It was this threat that prompted and motivated the complaint of rape against the defendant.
When the aforementioned facts were disclosed to the prosecutor, he voluntarily agreed to dismiss, with prejudice, the criminal charges against the defendant.
Résumé fraud is a type of deception that is appearing with increasing frequency. One notable case involved Janet Cook of The Washington Post. Cook was a reporter who won a Pulitzer Prize based on a fabricated story. Later investigation revealed the truth and exposed the fact that she had falsified her credentials at the time she applied for her position at the Post.
Background investigations on employees become even more important in the light of the increasing number of lawsuits that have resulted in judgments against employers who made no effort to check the credentials of a new employee. In the typical scenario, the employee becomes involved in a crime against a fellow employee or customer. The subsequent investigation reveals a history of violence, criminal activity, deception, and other forms of illegal and unethical conduct that could have been discovered if the employer had taken the initiative to diligently examine the employee’s past before they were hired. In some such cases, the courts have awarded significant judgments against the employers based on their negligent hiring practices.
In summary, I suggest that when you consider a case for investigation you should be as explicit as possible. Define the scope of the investigation and set limitations. In a tort action, for example, if liability rather than damages is your focus, say so. Make sure your investigator understands the specific information you want and define your needs in writing. Be sure to set a timetable for completion and a maximum allowable budget. On more protracted investigations or complicated cases, give assignments in phases. Sometimes a set of facts you discover early in the case will make the remainder of the investigation unnecessary.
Assign any follow-up investigation as soon as possible. Don’t wait until contacts fade and witnesses develop amnesia. Be sure to point out any flaws or omissions, since any feedback you can provide will most likely enhance results. Despite popular belief, an investigator’s job is based upon relentless determination and thankless drudgery.
Unfortunately, you don’t always get what you pay for. An investigator’s hourly billing rate is not always a measure of quality. Some investigators are under the misconception that the attorney merely passes the cost on to his client. Therefore, an investigator’s invoice, which simply states “For professional services rendered: $ 3,000” should be rejected. Use investigators who maintain careful time and expense records in a form suitable for sharing with your clients. This is expected of lawyers and unquestionably must be required of investigators.
Insist upon involves with each expenditure and service. Your investigator should always be cost-effective and have your budget in mind. Be certain to ask for the investigator’s list of fees for any flat-rate services or expenses (such as mileage, photographs, online data research fees, etc.). Find out how much you are being charged for travel time as opposed to field investigation. Simply stated, be sure you understand all of the costs involved.
While a commendable investigation can shape the outcome of a case, your choice of a proficient investigator will indubitably shape the outcome of the investigation.