Common Mistakes Attorneys Make When Hiring an Investigator
The Right Investigator Can Make All The Difference
Civil litigation and criminal defense attorneys at one time or another are faced with the decision to hire a private investigator to help with a case. I’ve seen three big mistakes that lawyers make when deciding to hire an outside investigator. These mistakes can lead to the attorney’s client losing money and possibly their freedom.
Mistake #1 – Thinking any Private Investigator Can Fill the Bill
There are a lot of great Private Investigators (PI) out there and they typically do fine work for their clients. However, only a small percentage of PIs are qualified to be called “legal investigators.” Sure, a PI can locate witnesses and interview them, and they may be able to locate additional evidence that can help an attorney. But the big difference between a PI and a private investigator who is also a legal investigator is knowledge and vision.
Everything the legal investigator does is geared toward the eventuality of presenting witnesses and evidence in a trial. The clear majority of legal investigators have prior experience working in law enforcement, public defender’s and prosecutor’s offices, or law firms. They know from experience and training what attorneys need to present the best possible case for their clients. They can see what witnesses and items of evidence are favorable or harmful to the client. They can see how things might play out in the courtroom. Because of their prior employment they normally have a good understanding of police techniques, forensics, interviewing tactics and evidence.
Too often a PI is nothing but a hired gun for his or her side in a legal dispute. Some will shade the witnesses they interview and the evidence they gather to ensure their side prevails. A legal investigator will only deal with the truth. His aim is to assemble as complete a factual picture of the situation as possible. By providing this picture, the legal investigator arms the attorney with the truth so he or she can guide their client to the most advantageous decision.
How does an attorney find a private investigator who is also qualified to be a legal investigator? References from fellow lawyers are probably the best way. But if you are unsure of how to locate one on your own you may want to check out the National Association of Legal Investigators (NALI) (www.nalionline.org). To gain membership in this organization, prospective members go through a rigorous application and referral process. That process ensures that only the highest technically qualified and ethically based individuals can claim NALI membership.
Mistake #2 – Waiting Too Long to Hire an Investigator
Early in my career as an FBI Agent, I fell into the common Bureau belief that we Agents investigate and that the United States Attorney’s Office prosecute. Though technically true, as a practical matter that belief is a recipe for confusion, anger, and the possibility of an investigation going nowhere. I may have been able to convince an Assistant United States Attorney (AUSA) to present my case to the grand jury and secure an indictment, but afterward came a communication black hole. That is until the week before the scheduled trial and the AUSA called with frantic requests for additional interviews and tracking down additional evidence.
I learned from those mistakes and evolved a style of investigation where my AUSA was intimately involved in the investigation from Its inception. We would collaborate throughout the case so that by the time we obtained an indictment, we were also ready for trial. The last-minute scrambling was all but eliminated. And, since we were trial ready at the start of the litigation process most defendants realized their only course was to plead guilty and cooperate.
Unfortunately, private attorneys are often guilty of waiting until the last minute to bring in a private investigator to conduct a legal investigation. Granted most trial attorneys are busy juggling caseloads and clients. That is even more reason to bring in the legal investigator either at the beginning of the case or at the anticipation of legal action. He can conduct much of the groundwork for the attorney, vetting witnesses and gathering and analyzing evidence. As in all things, the more time we have the better job we’ll do.
Some attorneys and their clients are often worried that bringing in an investigator early can lead to higher costs. In many cases the opposite is true. An early start to the legal investigation may unearth the facts that will lead to an early settlement or plea; saving money and time.
Mistake #3 – Not Fully Using the Investigator’s Talents and Abilities
The lawyers have the tough job. In the end, they are the ones who must stand before a judge and jury and convince them that their client’s position is the right choice in the dispute. Nobody ever condemns the investigator for doing a bad job, it all falls on the attorney. As a result, many attorneys want to micro-manage their investigators. They will keep them on a short leash and give them specific tasks to accomplish. Go interview this person. See if this item of evidence is valid. They don’t trust their investigator enough to let him do his job.
Trust in others can be tough. However; if an attorney knows he has hired a legal investigator for the job, he can rest assured that trust is warranted. Not only can the investigator interview and analyze witnesses, discover and examine evidence, help with the logistics for trial; he can also be a collaboration partner. The legal investigator is there to give you the benefit of his years of investigation and legal experience in deciding an effective case strategy
Most legal investigators I know want to have case ownership along with the attorney. They are ready and able to be a full member of the legal team for the client and do everything within their power to bring about the best results possible. Take advantage of the investigator’s pride, passion, and professionalism and you will be pleasantly surprised with the results.
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About the Author
James K. Ellis is a retired FBI Agent with over 29 years of service to North Texas. He is now the Owner of JKE Texas a full-service private investigations firm specializing in litigation support, business fraud, and general investigation services. He is a Certified Fraud Examiner and a proud member of the Texas Association of Licensed Investigators and the National Association of Legal Investigators.
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