The work that top investigative services firms do for their clients is important and valuable; it can, must and will continue. But in too many instances, and for far too long, some investigators have been presenting their work as a mysterious, “dark art”, and their clients have sometimes been too willing to accept it. In reality, investigative services must be carried out according to an appropriate and approved set of ground rules, within the law, and with a high degree of transparency and accountability.
Consider going in the front door
First things first: Do you really need a private investigator? In the case of a leak from a boardroom, for example, could you instead ask all the relevant individuals for the information you need, such as their telephone records? This type of request is unlikely to be burdensome or invasive – usually only a few weeks’ records are relevant and only calls to a few phone numbers tend to matter. You could even assure the individuals’ privacy by appointing a neutral person of impeccable credentials, such as a former judge, as the custodian of the records.
Investigate the investigator
If you do need a private investigator, start your search for the right one by asking colleagues whom they have used in the past, and with what result. Ask prospective investigators for references, and call the names provided. Check for past press articles, good and bad, mentioning the investigator.
Ask about, and check independently for, any past litigation or licensing/disciplinary matters. You want to hear not only that the investigator respects the law, but that he/she scrupulously avoids investigative steps that, even if technically legal, might undermine your best interests. You want to hear that the investigator is careful to use methods that will bear scrutiny by judges and juries. And you want to see indications that the investigator’s firm has a culture of compliance. For bigger firms, at least, that might mean an ethics statement on the investigator’s website and an internal compliance plan.
Specialised expertise trumps geography
Investigators, like lawyers, have a variety of specialties, and just as you wouldn’t engage a real estate lawyer to file a patent lawsuit, you need an investigator who specialises in the type of fact-gathering you need done.
Take, for example, an assignment to an investigator to track down a witness in Cleveland. Years ago, before computerised databases, you needed to identify a good investigator in Cleveland to get someone to knock on doors there. That would now be misplaced, as web-based commercial databases are nationwide, limiting the need for door-knocking by local investigators.
By recognising geography as an often-secondary consideration, you can open your search to find an investigator with the appropriate background, expertise and ethics.
Start with a hypothetical
Careful clients begin the first conversation with an investigator regarding a new assignment with a hypothetical scenario, to determine whether and how the prospective investigator has approached this type of assignment before. The right investigator will be able to tell you about successes in similar cases, and, most importantly, how the results were achieved.
Expect–and want–to hear “No, I can’t get that”
Laws will vary from country to country, and you need to identify which ones apply to the information you want to obtain.
For example, in a US-based asset-search case, you should choose the investigator who says he can’t find out how much the subject has in his bank account, or to whom he has written cheques, as accessing this information improperly would violate the Gramm-Leach-Bliley Act. In an assignment to obtain background on a litigation opponent, choose the investigator who tells you she can’t obtain a comprehensive national “rap sheet” of criminal charges as the likely source of these would be the FBI’s eyes-only database.
These “no” answers should indicate that the investigator complies with the laws that, in effect, designate information that can and cannot be obtained legally.
Expect and demand methodological clarity
“Don’t ask, don’t tell” is never sound policy when it comes to investigation management. The investigators you retain are your agents, and you can be held responsible for their conduct. You cannot allow any mystery or misunderstanding, winks or nods, smoke or mirrors; you need your investigators to outline clearly the steps they propose to take on your behalf.
Investigative work should proceed in phases, with each phase controlled by a detailed to-do list, budget, timeframe and prohibitions, presented in writing and reviewed and approved by you. The investigative team should explain in detail, and to your satisfaction, what they are about to do, not just nod their assent to your directions and concerns.
This to-do list approach doesn’t preclude the investigators’ use of, for example, confidential sources. Even if you decide you don’t need to know the names of sources, you should have a chance to approve or veto those sources beforehand. Just don’t let your investigators use the phrase “confidential sources” as a cloak of invisibility and unaccountability, masking whatever it is they are doing. As the work proceeds and the time comes for your investigators to present their findings, there should be no mystery about where each and every piece of information came from.
Make your prohibitions crystal clear
It is good practice to stress specific investigative do’s and don’ts in your briefings and engagement letters.
One good example is the use of subcontractors. You don’t want to discover that the information you are relying on was obtained by an extended chain of subcontractor investigators whom you may not have known about or approved and who may or may not have behaved legally or even ethically. You can insist on knowing about–and approving or rejecting the selection of–any subcontractors your investigator wants to hire.
Rehearse beforehand first contacts with witnesses or others
Give some thought to whom your investigators may interview, how they will introduce themselves and their inquiry, and what they are prohibited from discussing. Best practice dictates that investigators prepare a list of proposed interviewees (whom to approach) and an interview template (how to approach); and that no communication takes place until the client has approved both.
The templates, tantamount to a script, should outline the approach to be used, starting with, “Hello, my name is ____ and I’m calling from ____ on behalf of ____.” Insisting that interviews be rehearsed and approved is sound investigative management. Even if they do not engage in outright falsehood in identifying themselves, investigators may choose from a myriad of ways to describe themselves, their client, the context for the inquiry, etc., and the client should supervise, edit and approve these choices.
Interview templates are a particularly important control mechanism when the interviews to be conducted are the subject of specific ethics rules and court decisions in various jurisdictions, and must be conducted with an understanding of what is required in a particular situation.
Interviews should be conducted by skilled note-takers, and almost never by tape recorder. Even if witnesses consent to have a tape recorder on the table during an interview, it often severely limits what they are willing to say. Investigators’ covert tape recording–even if permitted by local law or legal-ethics guidelines–may be viewed unfavourably by jurors and others.
Demonstrate your commitment to accuracy
Investigators should be used as fact-gatherers, not advocates for one particular position. Judges, juries, third parties and even opponents should be able to rely on the information they present. From the beginning, assignments to investigators should be worded carefully as digging for facts, whatever those facts turn out to be. And success should not be defined as achieving a particular factual result, no matter how close that result is to the client’s heart.
To-do lists, for example, should rely on words such as whether, as in “Determine whether Vendor X has undisclosed ties to Executive Y.” Interview templates should document that witnesses are being asked for nothing but the truth, letting the chips fall where they may.