If you’re a busy attorney, and you’ve never considered hiring a private investigator, you’re throwing away money. No matter how skilled, experienced, or efficient you are, you can’t possibly get to all the work that crosses your desk. You can’t do the fishing for case-making facts as thoroughly as you would like. And you can’t be an expert in everything.
What if you could outsource some of that time, shoe leather, and expertise, bill for it, and say yes to a wider variety of cases? How smart would you look if you had a savvy private eye in your rolodex, a gal with a hefty rolodex of her own?
The May 5, 2011 edition of The Economist printed a two-page story about the legal industry in America. They use Howrey (one of the world’s top 100 law firms) as an example of sea-change facing the profession. Aside from bankruptcy, securities litigation, and regulation issues, the world of 700 member law firms has been hit hard. Gone are the lucrative mergers and acquisitions (M&A), and it seems that clients are seeking, even demanding, alternatives to the ubiquitous billable hour.
One point The Economist makes: Clients are demanding “…that their lawyers pass certain routine work to cheaper contractors.”
Should lead counsel be in the field interviewing witnesses, canvasing neighborhoods, and personally vetting experts? Someone must, but these things take a lot of time and often lead to endless cul-de-sacs of evidentiary dead ends. Why not pay a professional investigator to track down hard-to-find witnesses, canvas the area, and vet experts?
It used to be that an associate could read up on a topic and brief the partner, each being paid handsomely for the private course of study. Now, more often than not, it makes more sense to bring in a qualified expert in certain fields, pay her a flat fee or lower hourly rate, and likely be better informed in the long run.
The Economist points out that law firms can guarantee themselves work by becoming “…experts in other industries, not just areas of legal practice.” An alternative to this, The Economist points out, would be outsourcing the expertise.
That’s where professional investigators come in. An attorney can leverage expertise, an investigative firm’s collective experience, to his own benefit. A true professional investigator either maintains expertise in various areas, or maintains affiliations with industry specific experts. Either way, an adept lawyer will realize the value of knowing a professional investigator, the consummate information professional, the guy who knows a guy.
First and foremost, attorneys are experts in the law. Some lawyers also craft themselves into industry specific experts: real estate, finance, criminal defense, aviation, medical malpractice, etc. The lawyer/expert is usually a person who takes on one type of case and charges top-of-the market fees for his niche. However, for the majority in the legal profession, criminal defense work can mean anything from a criminal charge for inadvertently carrying a four-inch pocketknife through airport security (a misdemeanor in Tennessee, apparently) to first-degree murder (widely accepted as felonious activity anywhere in the country), and literally anything in between.
Experts in the law, a general defense team should be well equipped to argue legal points; but what about specific issues in obscure cases from various disciplines in which they are not schooled?
Can, or should, counsel review a real estate appraisal report for a fraud case? It seems easy enough, but what about making sure the report follows Uniform Standards of Appraisal Practice? What are the four forces that are required to create value? These are industry-specific issues in which most attorneys do not (nor should they be expected to) have any competency.
Would it be advisable for a lawyer to analyze blood spatter in a crime scene photo? Should an attorney be expected to break down a financial statement and explain in detail whether it is misleading or fraudulent?
Why not hire a professional investigator knowledgeable in that field to bring one up to speed? By delegating work to experts in various fields, counsel makes his firm look savvy, connected, and thorough.
In the end, law firms must decide on a case-by-case basis whether to add a PI to the defense team. If your client left his cheese knife in his backpack after a weekend of hiking and finds himself in the clutches of TSA and airport police, an investigator probably isn’t necessary. If, however, your client has been charged with fraud in conjunction with an eleventy-billion dollar Ponzi scheme, it wouldn’t be a bad idea to consider hiring a professional investigator. Client is a local charged with DUI, no real need for a PI. Client’s an international banking mogul charged with attempted rape, you bet a PI is one of your first calls.
Background Research – The Accusers
In a criminal case, be it white-collar crime or assault, it is often very helpful to construct a detailed background on each of the key players. But painting a true, detailed picture of each character requires far more than a simple criminal records search. A professional investigator digs deep, makes hundreds of calls, knocks on doors, and follows narrative threads that can make or break a case.
When Dominique Strauss-Kahn (DSK) was accused of rape in May of 2010, his defense team hired professional investigators. Media outlets decried the practice of “digging up dirt” on the victim, claiming that this would turn a jury against the defense. However, in the end it was this very research into the credibility of the victim that lead to the dismissal of charges by the district attorney.
The investigators in the DSK case didn’t just poke around; they hauled through every point of interest exhaustively, chasing down countless leads. At the end of the day, they painted a picture of a woman who had been turning tricks in the hotel for months, an opportunist with sketchy associations. Her credibility shot, the case went away.
Your client doesn’t have to be a public figure to justify the services of a professional investigator. In a much lower profile case in a rural West Tennessee town, one investigator pored through employment records of a local shop owner who claimed an African American man had assaulted him. The case was based on the word of the shop owner, a former small-town firefighter. The investigator, after leafing through document after document, found a simple note from the then firefighter to his superior. The note was vitriolic and inflammatory, full of racial invective. Top it off with the hand-drawn Aryan Nations symbols neatly framing the correspondence and the case was tossed out.
The offending document was public record, part of a public servant’s personnel file, but it was buried in a pile of files at the back of the fire hall. Had this investigator not taken the initiative to thoroughly vet the accuser, the defendant would likely have been unjustly incarcerated and had yet another criminal charge in his jacket.
From simple assault to rape to fraud, a detailed background investigation into all of the players can make or break a case. Done properly and in a timely manner, this type of investigation can many times even avoid a trial altogether.
Background Research – The Experts
You know the state is going to parade out a troupe of experts, recognized professionals who will testify for the prosecution. These experts have, in theory, been vetted by the court.
The term vet, as a verb, is a vestige from the horse track. A thoroughbred must be checked for health and soundness by a veterinarian before it is allowed to race. Vet, therefore, simply means to check, to analyze and evaluate prior to a performance. In this situation, it is imperative to thoroughly vet all experts, the ones the prosecution is putting forth as well as the ones you plan to use.
A local law firm decided to rely on an appraisal report, prepared by a highly credentialed appraiser, in a fraud case involving eminent domain. The appraiser prepared the report using sales that occurred after the taking had been announced, a factor that greatly impacted real estate values in the immediate area. This is improper methodology, and it is potentially misleading. Had the law firm thought to vet the expert, they would have learned that he had been – in a very public way – excused from a previous court case for this very same practice. Since they relied on credentials alone, they ended up in a bit of a pickle when their expert was exposed as not-so-expert after all.
The Case of the Inexpert Appraiser was one that any professional investigator, especially one with experience in real estate and fraud, would have discovered in relatively short order. It was reported in a local newspaper. There are countless such “experts” who, if properly vetted, could be excused.
Use your investigator to do the homework. Paying an investigator to do the research is much less expensive than taking your time to pore through the Code of Professional Conduct for Professional Engineers.
Locating and Interviewing Witnesses
Once you take a complicated criminal case, call your professional investigator as soon as practicable. A professional investigator will, upon retention, begin working on a list of potential witnesses. Brief your investigator on as many details of the case as possible. Provide your investigator with a full case file: police reports, statements, crime scene photos, sketches, etc. Your investigator is performing work product, which should (in most cases and in most states) be protected.
The first step is to identify and locate all witnesses in the police reports and statements. Obviously, the professional investigator will (should) interview all of the witnesses that the police have identified. Some of them may not want to talk to you, and they don’t necessarily have to, but a good investigator has a very persuasive manner. A professional investigator will be able to deconstruct witness statements, compare and contrast statements taken at various times, and help you to identify flaws and potential areas of exploitation.
The second step, and arguably the most useful, is the neighborhood canvas. A professional investigator will conduct a thorough search for witnesses that the prosecution either could not find, or that the prosecution would rather you not find. A neighborhood canvas is time consuming, tedious, and requires a systematic approach. But, conducted property, it can unearth valuable, game-changing information.
The Appeal Phase
Let’s say that your client has been found guilty of first-degree murder and received the death penalty. The crime happened in 1992. Your firm, located in New York, took on the habeas case pro bono. The crime occurred in Memphis. Witnesses have moved. People have forgotten, or have claimed forgetfulness. Time, as they say, marched on. Your resources are tight, and the stakes are extremely high. Please, I beg you, hire a private investigator.
Example: A law firm took on an appeals case here in Tennessee. One witness had offered statements which described three variations of the story, with important differences. Her statement to the police said the defendant had blood on her hands. Her statement to the prosecutor claimed the defendant was “covered” in blood. Her statement to the defense read that the defendant had cuts on her fists and bruises on her face.
The witness owned a house in Germantown, TN. Her daughters lived nearby. They didn’t especially want Mom, by then in her late 70s, to face all this badness again. They would not, under any circumstances, reveal where mom was. A professional investigator, who was called in after three years of trying to locate this witness, found her in less than a day.
Turns out, mom had wanted to set the record straight for years.
Review of Crime Scene – Picking Apart the Prosecution’s Work
Professional investigators are fact checkers, not advocates; but shoddy work or unscrupulous work by the prosecution should be exploited. A professional investigator with proficiency in police procedures can help you find flaws in work conducted by the police and the prosecution.
If the Officer-in-Charge provides a less-than-detailed narrative description, there may be a problem hiding behind his omissions. Are the first responder’s notes consistent with the OIC’s notes? Are there pages missing (are the pages numbered)? Details, details, details…
You will likely find it beneficial to have your professional investigator visit the crime scene, take pictures, make sketches, verify sight lines, etc. This simple act can turn up revealing inconsistencies.
Example: Key witness told police that he saw defendant beat the victim with a shovel in the alleyway. Police report indicated that witness lived in Apt. 7B. After comparing the crime scene sketches and photographs with the actual building, the investigator realized that apt 7B faced the street, with no windows facing the alleyway. There was no way the key witness in Apt. 7B could see a shovel fight, or anything else, in the alleyway.
The investigator spent two hours on site, measuring, videotaping, and drawing the scene. Upon return to the office, the investigator made a simple two-dimensional sketch showing the exact place of the crime in the alley and the view the witness had from unit 7B. The police tried to explain, but…
Turns out, the witness had a few outstanding warrants when this crime occurred, completely unrelated. The police, based on his later testimony, had indicated that if he said he saw the crime, they would forget about the outstanding warrants. Details, details, details…
As a criminal defense attorney, people and cases are likely tugging at you from every direction. Why not part out the routine tedium to a qualified professional investigator, and focus on matters of law. Leverage the expertise of your investigator, and you can be more effective. If used property, a professional investigator can make you look smarter. Instead of burning up hours, most likely expensive hours, of your time canvasing, interviewing, and documenting, hire a professional investigator to do your legwork and, quite possibly, make your case.
NOTE: All anecdotes in this piece have been changed. Location, gender, and case specific details have been altered to avoid revealing any of our client’s information. The stories are taken from [FIND] Investigations case files, fellow professional investigators, and national news items.
Thomas H. Humphreys lives in Nashville, TN where he shares a house, an office, and a life with his wife and partner Kim Green. Mr. Humphreys is an award winning journalist and has contributed to international travel publications, regional magazines and news papers, as well as various public radio outlets. Mr. Humphreys owns [FIND] Investigations, a full service private investigations company.