A Few Words About Investigations in Europe 175 outline of the information expected can speed the work enormously. You can make the process more transparent and comfortable for the overseas investigator and your client if you all understand what is required to get started and what to expect. • Be prepared to tell the investigator precisely where the work is located. The more precise, the better. • Provide the name of the entity in which you are interested if at all possible. • Be prepared for the investigation to take longer than it would in the United States. • Expect that there will be some documents that will not be acces- sible. • Understand that for a number of reasons, the cost will be higher. Chapter 14 PROFESSIONAL PRIVATE INVESTIGATORS IN THE CIVIL JUSTICE SYSTEM WARREN J. SONNE M ost if not all civil justice systems around the world provide a forum for settling claims, or disputes among people, and enforc- ing the government’s laws. These systems vary greatly from place to place and can change rapidly over time. King Solomon used the threat of a sword to settle the opposing claims of two would-be mothers; today issues of embryonic cell research and human cloning are part of the modern legal lexicon. As civil laws have evolved, so have the professions that provide ser- vices to assist with the prosecution or defense of the parties involved. Judges and advocates are better educated in the laws; doctors (of both medicine and philosophy), and engineers are called upon to provide advice to their clients, and/or expert testimony based on their years of formal education and experience. New professions, such as computer or cellular forensics, are created as new technologies appear. Professionalism in the investigative field has kept pace, providing great opportunities for private investigators to work with preeminent clients. It is no surprise that there is no single universal standard or license for private investigators, just as there is no universal license for doctors or lawyers. Through perseverance, however, and aided more recently by the development of the Internet, private investigators have been able to expand their knowledge base; communicate ideas; and improve the local, national, and international professional associa- 176 Professional Private Investigators in the Civil Justice System 177 tions, transcending borders and time zones. We are indeed a profession, because of the following: • We have a universal philosophy to honestly seek the truth for our clients. • We have developed bodies of knowledge that we archive for the use of others. • We continually publish literature of research, and peer review. • Our leaders around the world represent us to governments, cli - ents, and the press. • Our associations have codes, guidelines, oaths, mission, and eth - ics statements. • We advocate for licensing, certification, specific initial qualifica- tions, as well as requirements for ongoing education. • We have formal dispute resolution, complaint, and disciplinary procedures. • We offer thorough and often highly specialized investigative ser- vices. • We investigate for our livelihoods. There is a “natural selection” process at work within the civil justice field. Both plaintiffs and defendants seek out the best-qualified attor- neys to support their cause. These same clients or their advocates will seek out the best-qualified persons or companies to assist them. If a pri vate investigator is required for either litigation or other issues, clients will look for the most-qualified professional they can find. Nothing builds a long-term relationship like success does. The strong will survive. Exactly what are professional private investigators within the civil justice system? Let me start with what we are not: • We are not lawyers, yet we need to know the legal limits of our actions and stay within them. We need to understand the issues and the theories of law that are involved. • We are not engineers, yet we need to have an understanding of how things work or were designed to work. We need to know the products in question and how they are used. We need to have a good eye for detail. 178 Basic Private Investigation • We are not paramedics, but we need to have an understanding of what they do at accident or injury scenes. • We are not automotive mechanics or plumbers, yet we need to have a concept of normal operations, maintenance, and repairs. • We are not janitors, yet we need to know how and when things get cleaned or maintained. • We are not firemen, yet we need to know their basic procedures at the scene, as well as their record-keeping procedures. • We are not handymen or carpenters, yet we need to know how they fix a loose handrail or a step or the proper use of a nail gun. • We are not the police, yet we need to be especially aware of their actions at accident or injury scenes and their follow-up investiga- tive procedures. • We are not doctors, auto body mechanics, tow truck drivers, pro - perty managers, truckers, or so many of the other professions that we are called upon to investigate or interview during the course of a civil matter. What we are: • We are the front line eyes and ears for our clients. • We are the gatherers of facts; obtainer of records; locator of vehicles and other equipment, or parts thereof; interviewer of witnesses; pro fessional photographer; safe guarder of evidence; liaison with law enforcement; expeditor, report writer and many others things. • We are the seekers of the truth, the true reporters of certain life events. “As gatherers of facts it is our responsibility to obtain the most info- mation possible. The term knowledge is power has real-world mean- ing to our clients. If we are able to provide them with specific facts, or witnesses that are not known to the opposition, it allows our client to better formulate their plan. On the other hand, should the opposition obtain information or witnesses that we are unaware of; it places our client at a distinct disadvantage. You will not keep clients if you con- tinually leave them under-informed.” 1 1. Warren J. Sonne, Investigating automotive product liability claims, PI Magazine, 70, Nov/Dec 2003. Professional Private Investigators in the Civil Justice System 179 CIVIL INVESTIGATION There are three basic differences between criminal and civil mat- ters: (1) in criminal matters, the plaintiff or accuser is the “People of the State” or “of the United States,” whereas in civil matters the ac - cuser is overwhelmingly a private individual or business entity who be lieves that he or she or it has been wronged, (2) the punishment at stake in criminal cases is incarceration and occasionally a fine or resti- tution, whereas the punishment in civil matters is usually monetary, and (3) the evidence requirements (burden of proof) are much greater in criminal cases than in civil ones. In the United States, the burden of proof in criminal trials is always on the prosecution, who must prove the case beyond a reasonable doubt, yet in civil cases this burden always begins with the accuser but may under certain circumstances shift to the defendant and both must only prove the case by a preponderance of the evidence, meaning just a little more than their adversary. In some civil cases, the level of proof may require the slightly higher level of clear and convincing evidence that is still well below the criminal requirement. Each state in the United States addresses this burden of proof in its own way. Other nations have developed their own distinct burdens of proof. Other differences between U.S. criminal and civil matters have to do with the protections that are afforded to the participants under the law. As long as the government or its agents are not prosecuting, civil cases are not filled with issues such as the U.S. Supreme Court’s 1966 Miranda decision (“The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to con- sult with an attorney and to have that attorney present during ques- tioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him” 2 ), or the rules of evidence defined in the Supreme Court’s Mapp v. Ohio decisions, which decided that evi- dence in state court criminal cases that was “obtained in violation of the Fourth Amendment, which protects against unreasonable searches and seizures, may not be used in criminal prosecutions in state courts, 2. Miranda v. Arizona 384 U.S. 436 (1966) 180 Basic Private Investigation as well as federal courts.” 3 This reference to unreasonable searches and seizures only applies to government agents and not to nongovern- mental plaintiffs and defendants in civil matters. Nor are there any other constitutional protections under the Fourth (unreasonable search and seizure), Fifth (self-incrimination and speedy trial), and Sixth (right to counsel) Amendments. There is also no double jeopardy issue between the criminal and the civil laws, as demonstrated by the civil prosecution of O.J. Simpson after his acquittal on criminal murder charges. These differences in the U.S. criminal and civil systems of the law have a significant impact on the manner in which private investigators conduct their business. This chapter is not being written as a legal primer, nor should it be interpreted as legal advice, rather it offers a general overview of the issues that professional private investigators deal with on a daily basis. Investigators are strongly urged to seek the advice of their own attorneys, and/or their attorney clients, and to familiarize themselves with the appropriate laws for their geographic area of investigation, both in the United States and, as applicable, internationally. For the purposes of this chapter, civil investigations will be consid- ered to be U.S. cases that begin as not criminal, even though they may evolve to reach the criminal threshold. Other countries may have sim- ilar or very different concepts. Furthermore, the investigative tech- niques will be discussed without bias as to plaintiff or defendant cli - ents. The role of the investigator as the seeker of facts applies to all cases, regardless of the nature of the client. Civil law is an overly broad term because it includes many special- ized and diverse areas, such as: • international law • constitutional and administrative law • contract law • tort law • property law • equity and trusts • labor law 3. Mapp v. Ohio, 367 U.S. 643 (1961) Professional Private Investigators in the Civil Justice System 181 • human and civil rights • immigration law • social security law • family law • commercial law • admiralty law • intellectual property • banking law • tax law • antitrust law • environmental law and other subspecialties. At some point in time, a private investigator may become involved with cases that touch upon these areas of the civil law, and in fact there are some investigators who specialize in many of these categories. Yet, of all these areas, professional private investigators are more likely to be involved in the area that deals with negligence: tort law. TORTS Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. . . . While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. . . . Among the types of damages the injured party may recover are: loss of earnings capacity, pain and suffering, and reasonable medical expenses. They include both present and future expected losses. . . . Torts fall into three general categories: intentional torts (e.g., intentionally hitting a per- son); negligent torts (causing an accident by failing to obey traffic rules); and strict liability torts (e.g., liability for making and selling defective products). Intentional torts are those wrongs which the defen- dant knew or should have known would occur through their actions or inactions. Negligent torts occur when the defendant’s actions were unreasonably unsafe. Strict liability wrongs do not depend on the degree of carefulness by the defendant, but are established when a par- ticular action causes damage. (Personal knowledge of author) 182 Basic Private Investigation THE SEARCH FOR NEGLIGENCE Torts are likely the basis for the majority of investigative man-hours expended in civil cases. A party who believes that he or she was harmed by another party’s negligence can institute a lawsuit for the pur pose of collecting damages and, in some cases, to prevent the de - fendant from committing the same type of harm to others. Many times the defendant may also face the risk of additional monetary punish- ment in the form of punitive damages. Punitive damages (punishment) can be awarded in most states when the jury finds that the defendant knowingly or maliciously harmed the plaintiff(s). In cases such as this both the plaintiff and the defendant may retain the services of private investigators. Automobile accidents, trip and falls, dog bites, and prod- uct liability cases are examples of torts. The goal of the plaintiff in tort cases is to prove the negligence of the defendant. Often plaintiffs will share in the negligence if they have done something themselves to cause the injury or failed to do some- thing that could have prevented or lessened it. Defendants will seek to prove that they did nothing wrong or that the plaintiffs were responsi- ble, or at least partially responsible, for their own damage or injury. This theory of law is known as contributory negligence, and in sever- al states it can prevent a plaintiff from winning any award in a case in which he or she was found to be even the slightest bit negligent. The degree to which negligence must be proved varies from state to state, and in most jurisdictions any damages that are awarded to the plaintiff may be reduced by the percentage of negligence for which the plaintiff was found to be responsible. For example, if the jury or judge found that the plaintiff’s injuries were worth $100,000 but also believes that the plaintiff was 25 percent at fault in the accident, the amount that the plaintiff would be awarded is $75,000. This is known as com- parative negligence. Plaintiffs will try to prove that the other party was responsible, or at least more responsible than the plaintiff is. In most personal injury cases the plaintiff will need to show that the defendant was either the direct cause or, through some negligence, caused the plaintiff to be injured. Often, private investigators will be leading these searches for negligence. In certain instances, such as product liability cases, the manufactur- er or seller may be liable based solely on the faultiness of the product, Professional Private Investigators in the Civil Justice System 183 whether the defect occurred during the design, construction, or pack- aging of the product or if there was a failure to warn the user about some hazard involved with the product’s use. Some notable examples of this theory of law are the Ford Explorer Firestone tires, fifteen-inch ATX, ATX II, and Wilderness AT tires, which suffered from a high- tread separation rate; asbestos or lead paint litigations; or the current (2009–2010) Toyota sudden acceleration cases, which should begin making their way through the courts shortly. When selling their products, the manufacturer and their entire downstream chain of vendors or resellers may be held responsible for injuries caused by the use of that product. Each state has its own rules regarding the statute of limitations for bringing such law suits, and/or may have enacted a statute of repose. A statute of repose is a statute barr ing a suit a fixed number of years after the defendant had acted (usually by designing or manufacturing an item), even if the injury suf- fered by the plaintiff occurred after the period had lapsed. Warnings and instructions on the proper use of a product, such as using a gas-operated generator only in a well-ventilated area, or wear- ing seat belts to protect you from injury during vehicle accidents, are now required by law in the United States. In such cases, there is no need for the plaintiff to prove negligence, only that the product was defective or that there were no adequate warnings. Again, the laws governing product liability are determined by each state or country and are not universal. If the injured party may have been using the product in an inap- propriate or reckless way that was not imagined by or designed for by the manufacturer, however, the private investigator’s hunt for contrib- utory and/or comparative negligence may be back on. Examples of possible inappropriate or reckless use would be the use of a flashlight to hammer a nail, causing an injury from a broken lens or casing; using the family car to knock down the barn; or using a propane torch to dry your hair. Again, each state treats these issues differently, so pri- vate investigators need to know what they should be looking for. In most cases involving strict liability, meaning that the manufactur- er is liable if the product is defective even if the manufacturer was not negligent in making that product defective, there may only be a limited need for private investigators. These cases generally involve plaintiff’s experts reviewing the defendant’s records that were ob tained through 184 Basic Private Investigation the discovery process or that may have been obtained from other attor- neys who were successful in bringing similar product cases against the same manufacturer for the same defect. Investigative requirements may only be limited to verification that the injury was caused by the product or confirmation that the plaintiff is who he or she claims to be or that he or she was exposed to the specific product as claimed. In other cases, such as asbestos, tobacco, and lead paint litigation, the investigations may span back over decades to determine if the plain tiff actually worked with, or was exposed to, products that con- tained these substances. Asbestos litigation was originally brought against the manufacturers of insulation and flooring materials but has expanded to include the automotive and other industries that used asbestos in frictionable products such as brake pads and clutches. These types of litigations have also expanded to include those who may have been exposed by secondhand means, such as children sit- ting on their parents’ laps when they returned home from work from an asbestos contaminated site or people inhaling smoke from someone else’s cigarette. Another theory of negligence that still exists in some states is assumption of risk where potential plaintiffs sometimes take the risk of injury onto themselves and absolve potential defendants from any lia- bility. Formerly, this was an affirmative defense available to defen- dants but has since been subsumed by contributory and comparative negligence in most jurisdictions. Prior to the current workers’ compensation laws, the assumption of risk was a common defense used by employers. Now that workers’ compensation laws prevent employees from directly suing their em- ployer for negligence, this defense has been all but abandoned. Many states still follow a related theory of law called the “Fireman’s Rule,” however. As with the assumption of risk, these laws limit the ability of public employees who are routinely involved in emergen- cies, such as police and firefighters, to sue for damages based on injuries that they may sustain during the normal scope of their em - ployment. The laws vary greatly, with some states allowing lawsuits based on negligence of the property owner or their contractors, prod- uct liability, dram shop laws, and so on. The investigator of tort claims must be aware of the legal require- ments of negligence as it relates to their client’s case within the juris- [...]... future cases The investigator’s job is not to tell the client what he or she thinks the client wants to hear; rather, it is to tell the client what he or she needs to hear Most attorneys enjoy hearing good news eventually, but good attorneys want to hear bad news immediately The other whos may include the various types of witnesses, businesses, employers, employees, contractors, subcontractors, government... or rented vehicles in the affected states It is the attorney’s job to prove or disprove that a party to the lawsuit had the legal obligation to act or not act in one way or another and that his or her failure to live up to that obligation caused the injury It is the private investigators job to provide his client with the real facts of what happened You will generally not learn the full magnitude of... you should ask them about this during your introduction and prior to asking any further questions about the case If they indicate they have counsel, terminate the interview until you are able to obtain their attorney’s consent to proceed THE ISSUES OF WHAT, WHY, WHEN, AND HOW Because this is a tort case, you will be asked to investigate the damage that one party allegedly caused the other party During... bound by the attorney— client privilege, and they may feel at risk in sharing all of their secrets with you for fear that this knowledge may be used against them in future cases Although these meetings may be covered under the attorney-client privilege, which protects private communications between them, there still may be resistance to allowing an investigator to take part, even if the investigator has... since the accident If the incident was very recent, conditions at the scene may be relatively unchanged There may still be markings left 196 Basic Private Investigation by law enforcement investigators that you can document or debris or other evidence from the accident that has either been overlooked by the initial investigators or swept aside, such as glass or other parts of a vehicle On the other... clear picture of the event Professional Private Investigators in the Civil Justice System 195 In the case of accidents, the plan should include a visit to the scene so it can be photographed and/or videotaped and measurements taken of the entire area Accurate information is desired, but you may not have the correct equipment or the expertise required to produce exact measurements or to competently compare... whos you become aware of during the investigative process, including your own client It is your job as the investigator to ensure that there are no surprises in store for your client If the opposing parties’ investigators unearth something that you should have found or did find but did not tell anyone about that proves to be damaging to Professional Private Investigators in the Civil Justice System 189... negligence THE TEAM CONCEPT As a professional private investigator you are a part of a larger team Many law firms (both plaintiff and defense) will maintain full-time inhouse investigators, some of whom may also function in a paralegal capacity These investigators will usually get to follow a case from intake to disposition, including assisting the attorneys in the courtroom Most private investigators will... experts and the opposing experts WHO NOT TO INTERVIEW Every state, as well as the federal government has a code of professional responsibility or rules of professional conduct that prevents attorneys from communicating directly with an adverse party whom they know to be represented by an attorney This prohibition extends to any agent of the attorney, including investigators The following is part the American... authorized by law to do so For the private investigator, this means that you should not speak to any adversarial party whom you know is represented by a lawyer in the case that you are investigating without first obtaining that lawyer’s Professional Private Investigators in the Civil Justice System 191 consent for you doing so To do so is not a criminal act, but the potential damage to your client’s . of torts. The goal of the plaintiff in tort cases is to prove the negligence of the defendant. Often plaintiffs will share in the negligence if they have done something themselves to cause the. what is required to get started and what to expect. • Be prepared to tell the investigator precisely where the work is located. The more precise, the better. • Provide the name of the entity in. on. The investigator of tort claims must be aware of the legal require- ments of negligence as it relates to their client’s case within the juris- Professional Private Investigators in the Civil