Attorney and private investigator John Nardizzi’s 2018 manifesto for investigators: Know thy worth.
Don DeLillo once wrote, “A fact is innocent until someone wants it; then it become intelligence.” Clients pay well for good intelligence. But how to explain the uneven appreciation of investigators that permeates the legal profession?
I have investigated long-running cases where one side hires PIs to conduct extensive investigations while the other side does . . . nothing. No witness interviews; no background research. It’s shocking to see. Some blame the reputation of certain investigators who break the law in pursuit of a win, but there’s more to it. Many lawyers simply have no clue about what top litigators are doing when they investigate a case. And I have some quotes to prove it.
But we are not here to condemn. Trial lawyers are the superstars of the legal profession. El jefe, the quarterback, the captain of the legal battleship. But when your fearless leader is less Captain Kirk and more Captain Ahab, pulling his legal team down to a watery grave, something needs to be done.
Too many investigators bend the knee in the face of inept leadership from the lawyer. No more. As both a lawyer and investigator, I always champion the incredible value that investigators bring to a case. And while we provide services to law firms, we should also seek to compete directly with them. Investigators often can solve a problem at lower cost and with more discretion than a lawyer can.
So in the spirit of investigators ascending to our rightful place, let’s review the top six dumb things lawyers have said to me during two decades of high-stakes litigation:
#6. “Can you reduce your rate?”
Every investigator sees this tactic: The attorney dangles the prospect of a new case and front-page headlines in exchange for a PI dropping their billing rate. The blueprint is always the same: “urgent matter . . . big case . . . high-profile client.” And the lawyer needs a dozen witnesses interviewed by the end of the week, and asks you to drop everything to work on the case.
Don’t fall for it. Always bill lawyers your top rate. Good lawyers value your services and will pay for elite work. We do things they can’t do very well, such as interviewing witnesses, developing social media intel and deep background. And PI rates are a bargain compared to trial lawyers’ fees.
#5. “So you really just go out and talk to people?”
This quote stands as proof that best practices are followed by the best, not by the majority. Let’s jump into the scene: a conference room, lawyers, investigators, RICO charges, various shootings over a period of years. Lots of mayhem, lots of witnesses. Lots of investigation to be done. As each investigator summed up the results of their interviews, one lawyer’s face took on a palsied, slightly bewildered look. When his turn came, he asked, “So you really just go out and talk to people?”
A moment of silence followed. One of us explained that, yes, that is what investigators do. We talk to people about difficult subjects. Sometimes a PI might record the interview or even do the scribble scribble scribble, jotting notes in a little notebook about comments made by the witness. Crazy things, like “Lisa embezzled money for years from the company,” or “Antonio is an informant.”
Sometimes those scribbles decide the case.
#4. “You can’t work in this profession and have a family.”
I was told this by a guy who is both a lawyer and private investigator—I will blame his sinister side with the bar card for the quote. A bombastic, rather unhappy chap himself, he fired me after I called him out on some absurd gamesmanship after the birth of my first daughter. In a bygone era, abusing your staff seemed to pass as a sign of just being ambitious, taking a shot at the brass ring, or getting the best out of people—even if such a warped belief was just a sad reflection of the personal life of the boss.
Years later, I think I proved this quote to be nonsense. Countless hours of background research, witness interrogations, surveillance, GPS tracking, cell phone forensics . . . my kids’ high school shenanigans brought out the best in me.
But the joys of raising a family trump everything. And yes, success in this business is compatible with family life.
#3. “I don’t need to do much investigation—I already have the police reports.”
This quote came from a lawyer destined to star in district court for the rest of his career. Everything he needs is in the police reports. Except for everything that’s missing, such as names of witnesses that police overlooked. Or information provided by a witness that was never written down because it ran counter to the police theory of the case. Police reports often make my annual list for the best crime fiction—truly wonderful stuff, not to be taken at face value.
So yes, despite having the police reports, you might want to talk to those pesky witnesses anyway. And this lawyer also told me that he did terrific background checks on “the Google.”
#2. “I do my own investigations!”
Last year, the Milwaukee Journal Sentinel ran an expose about Wisconsin trial lawyers who have handled hundreds of felony cases without once hiring an investigator. At least one innocent man was wrongfully convicted—a mistake only discovered when investigators got to work on his case decades later. One lawyer said he didn’t see a need for investigators; another said he “knocks on doors” himself. Amusing on several levels.
First, in a trial, the lawyer can call the investigator to impeach a lying witness. When the lawyer does his own investigation, he is creating a scenario whereby he, in fact, is the impeachment witness. Judges do not allow lawyers to mix their role of advocate with that of witness—the lawyer will not be able to testify.
I contacted some of these lawyers. Their remarks revealed that cost is a factor—the lawyers could not afford to hire investigators. This, of course, is a lame excuse for doing a shabby investigation. You don’t ask a postman if he could poke around that electrical outlet smoldering in the kids’ bedroom. If a task needs doing, it needs to be done right.
There is also a practical reason why we don’t send lawyers tottering out to interview witnesses, best addressed by an old joke: What does a lawyer use for contraception? Answer: His personality.
While I have met one or two humble trial lawyers who did a good job with walk-up interviews, most are too aggressive, too insistent on cross-examining witnesses in their living rooms. They are just not attuned to the more subtle interviewing pace that PIs regularly set. I vividly recall a witness turning his entire body sideways to avoid a lawyer who was hovering like a junkyard dog, ready to pounce. Any decent PI would have read the situation, but the lawyer was oblivious. We lost that witness.
#1. “I like my witnesses fresh.”
Several variations of this line have been uttered by different lawyers over the years. Translated into English, it means “I forgot to tell my investigator to interview this witness, but I think I can wing it.” The quote seems to stem from lawyers’ delusions about their skills at drawing out the truth from a witness on cross-examination—“the greatest engine for discovering the truth” kind of nonsense that lawyers learn at trial colleges.
In fact, while a salad is good fresh, witnesses taste best when seasoned and prepped. We all know that the intensive work of investigation occurs before a trial. Cases are not won through clever closing arguments by poet-lawyers; they are won by the searchers—PIs who delve into the messy world of facts and lies and those who can’t tell the difference.
In the words of Sun Tzu, author of The Art of War: “Every battle is won or lost before it’s ever fought.”
So in 2018, let this be our aphorism: Know your worth, and charge accordingly. Keep your ethical compass close by and check it each day. Don’t risk your reputation by assuming the lawyer you work for knows more about investigating than you do.
In an era that too often praises the wrong people —egomaniacs abusing the less powerful, blowhards searching out tv cameras—let us sing the praise of the relentless, the creative, the dedicated—the investigators.
About the author:
John Nardizzi is an investigator, lawyer, and writer. In May 2003, he founded NARDIZZI & ASSOCIATES, INC., an investigations firm focused on civil and criminal trial work. He has publishing credits in numerous professional and literary journals. His 2014 crime novel “Telegraph Hill“ was lauded for ” lyrical prose and intimate observations of lesser-known San Francisco neighborhoods.” His second book in the series will be published soon.