Utilizing the Services of a Professional Investigator
By: Linda Montgomery ~
The services of the investigative industry have become vital not only to attorneys and insurance companies who have regularly hired investigators for decades, but for all types of businesses and individuals.
The modern investigator provides a variety of information services ranging from the more routine types of investigation, such as locating a witness or monitoring a claimant’s activities, to the more complex type of work such as finding hidden assets or assisting with trial preparation.
There are many other specialty areas that modern investigators today engage in as well, but in general, it can be said that the main work for investigators is finding information that is considered critical to the client for solving a problem and/or making an important decision. This information may be important to their business, to their financial well being, and to many others aspects of everyday life.
While the industry has grown considerably in the last decade and has made significant advances towards professionalism, the history of private investigators has been less than exemplary.
Making Sure the Investigator You Hire is Legal
The first step in hiring an investigator is making sure they are properly licensed and insured. You can easily do this by asking the investigator to give you a copy of their license and a certificate of insurance. The licensing laws vary throughout the United States and only a handful of states do not require a license.
In the state of Washington, an agency is required to be licensed and each individual investigator who works for the agency must also be licensed.
Currently to obtain a Washington State agency license, the applicant must have three years of investigative experience or pass an exam that is administered by the State. The applicant must also be free of any criminal history. Washington State is currently planning to increase the requirements for agency applicants to three years experience and the passing of an exam. This state also requires the agency owner to carry $25,000 liability business insurance. For hiring purposes, however, you will want to find an investigative agency that carries at least $1,000,000 in errors and omissions insurance.
Each person who works for an agency as an investigator in the State of Washington must also be licensed. The new investigator employee must attend a certification course and take an exam that is administered during this class as well as submit to a criminal history check.
It is important to be aware that other states have licensing laws, and that if you hire an investigator in the State of Washington and want to send them to another state, you need to check with that state to make sure there is "reciprocity." Many states do not allow for reciprocity of licensing for investigators coming in from another state. This means that they do not allow out of state investigators to work as investigators in their state unless they are licensed by the state that they are visiting. This can be very serious. For example, in the State of Texas, an investigator operating without a license can be charged with a felony . In the State of Washington, if an investigator is operating without a license they can also be charged with a crime, but it is a gross misdemeanor, which is less serious than a felony.
The State of Washington allows for "reciprocity," specifically the law states that investigators from other states that have similar licensing laws may work in Washington State for up to 30 days at a time for a particular case and 90 days total in any one year without obtaining a Washington State license.
Investigating the Investigator
In addition to making sure that the investigative agency and/or investigator is properly licensed and insured, you should check out their general credentials. The best place to start is by simply asking the investigator for a curriculum vitae, a list of references, how long they have been in business and any other questions you feel are relevant to the assignment that you have for them. Then you should verify that what they have told you is correct by calling some of their references and checking with the Department of Licensing to verify that their license is current.
In your initial discussion with the investigator, you will, of course, want to explain the type of investigation that you need and find out if it is within their area of expertise. If it is not, they may be able to refer you to another investigator. If they tell you that it is the type of investigation that they do, it is perfectly appropriate to ask them for references so that you can verify their reliability and ability to perform the assignment. It is also a good idea to meet with the investigator in their agency office so you can view their operation.
Most agencies have an hourly fee and a minimum retainer that they require prior to accepting a case; however, a few agencies offer a flat rate for certain services. The hourly rate charged by investigators varies a great deal, from as low as $50 per hour to a high of $100 per hour or more, depending on the region and the expertise of the investigator/agency.
It is imperative that you thoroughly discuss costs and reach an understanding with the investigator as to the proposed budget prior to beginning an investigation. Once the initial budget is agreed upon, it should be put in writing either in the form of a retainer agreement or an engagement letter.
The investigator may not be able to tell you exactly how much the investigation will cost. It is often not easy to predict the cost of investigation because there are usually a number of unknown variables involved. This is part of the reason why you need an investigator in the first place.
To control costs and avoid unanticipated expense, it is best to set an initial budget (with input from the investigator as to what is realistic for the type of investigation that you desire) with a requirement that the investigator not exceed the initial budget without authorization from you. Usually the investigator will give you a verbal report or a status report regarding the findings when the initial budget is reached and then you can decide if you want to continue with the investigation.
Many people have unrealistic expectations of investigators, especially if they are hiring an investigator for the first time. To avoid disappointment and possibly wasting your money, you need to discuss with the investigator what s/he thinks can be accomplished by the investigation that you have in mind. This discussion would include any limitations that the investigator feels are involved. The investigator should be able to draw on their experiences in other types of investigation to give you an idea of the likelihood of whether the type of investigation that you are interested in will give you the results you are seeking.
What the Investigator Can Do for You As previously stated, the professional investigator is an expert at finding information. With the information explosion the need for professional investigators has actually increased. While there is more information readily available to the public through many sources such as the Internet, a lot of this information is useless or erroneous, and often too voluminous for the average person to sort through. The investigator knows the best sources of readily available information and is also adept at assessing the reliability of the information found and thus, hiring an investigator can be the most cost effective method for obtaining important information quickly.
Attorney Work Product Privilege
If an attorney hires an investigator to do an investigation connected with a legal case or in anticipation of litigation, the results of the investigation are usually protected by what is called the "work product privilege." This means that the information from the investigation is not "discoverable" (i.e. available) by other parties as it is considered a part of the attorney's work product needed for the preparation of the attorney's case. The work product privilege will probably not hold up if a corporation or individual hires the investigator directly even when the investigation is connected with a legal case. Therefore it is important to retain the investigator through an attorney whenever the circumstances warrant it. The confidentiality of any investigation is always preferable for the client as well as for the investigator.
The client and the investigator should be aware that the work product privilege can be broken even if the information from the investigation is voluntarily shared with anyone other than the attorney and the client.
Specific Areas of Expertise
Court and Database Research:
Investigators are frequently hired to do court and database research regarding individuals and/or businesses. While many of these records are public information and available to anyone for free, there are many different courts and databases and the skilled investigator will know which courts are appropriate to be searched in any particular case. There are not at this time any reliable national court searches. There are some databases that claim to have national records, but because there are numerous courts in every county of every state, there is not a national database that is available to the public that could possibly contain all of the information for the entire United States court system.
Additionally, the databases that cover numerous court systems in each state and in each county are limited by dates. For example, in Pierce County, Washington, the municipal court from the small town of Sumner has only entered court data since 1995 into their computer system, so a statewide court search for a criminal history on any particular individual would not show criminal convictions for the area in that court prior to 1995. Records that are not entered into the computer system must be searched by hand at the individual courts. This is obviously not practical to do for every court.
The investigator is the best person to consult in order to determine which courts are the most appropriate to search for a specific investigation, since the investigator has the expertise to quickly advise the client about what is available and what is most practical.
The investigator is also able to search the various databases more quickly than the average individual since the investigator does this routinely. While the internet is continually adding databases and some court systems are listed on the internet, many systems are not available through the internet and require private subscriptions through corporate information provider services. The ordinary individual does not have access to these databases and most people do not have the time or patience to do extensive Internet searching on their own. Of course, those who love computers and love "surfing the net" probably can do at least some of their own research without the help of an investigator.
Investigators are often hired to determine the activities of an individual. Most often this type of investigation is used in potential fraud cases involving worker's compensation claims or insurance claims, but businesses have also hired investigators to investigate employees suspected of using drugs or to monitor outside sales persons who are suspected of not doing their jobs. Of course, investigators are also hired by spouses when illicit affairs are suspected. However, contrary to the widely held beliefs by the public, domestic surveillance is a small part of most agencies' business, and many agencies do not accept any domestic surveillance at all.
Activities monitoring usually involves the use of surveillance and is a very specialized type of investigation. You should be sure that the investigator you hire has the experience as well as the equipment to do this type of work.
While the modern investigator has a large variety of sources and methods for obtaining information, one of the best ways is still the old fashioned method -- namely, talking to people.
Surveillance may be necessary to prove a claimant isn't really injured. Court searches are helpful to know if there is a criminal history, financial problems, etc. But in most cases, talking to witnesses will give the investigator the important information to get the complete picture and help the investigator develop the leads and strategy that are necessary for a successful outcome.
Interviewing witnesses is not necessarily easy. People can be reluctant to talk, especially to someone they don't know. The investigator must be skilled at building rapport to quickly put the witness at ease so that the witness will be willing to share any information that they might have. The investigator must have good people skills as well as a sharp inquisitiveness.
Not all investigators are good at interviewing witnesses, just as some investigators are not good at conducting computer searches or doing surveillance. Many different skills are required for the large variety of investigations that are conducted, and most individual investigators do not have all the skills needed to do all the different types of investigations well.
An agency that employs a number of investigators will be more likely to conduct a large variety of investigations. Because there are still many investigators that work as "one person shops," if you hire one of these investigators it may be necessary for you to utilize the services of several different investigators if you do not hire an agency that employs a number of different investigators. Most investigators working on their own tend to specialize in one area.
Investigators frequently assist attorneys and claims adjusters in obtaining statements for court and/or for claims processing. It is important to know that recorded statements are probably "discoverable," and not covered by the "attorney/work product privilege." In the initial fact finding interview it is usually not a good idea to record a statement.
The issue of discoverability is generally not relevant when taking a recorded statement from a claimant as it is the usual practice in claims processing to obtain a formal statement from the injured person.
An advantages to having an outside investigator rather than a claims adjuster take the recorded statement from the claimant is that the investigator is not directly employed by the company that is paying the claim. There is, therefore, at least some appearance of objectivity for the company hiring an outside investigator to take a statement.
Workers Compensation Investigations:
All of the above types of investigations are frequently needed in the investigation of workers' compensation claims.
It is useful to begin a workers comp investigation with a court check to see if the claimant has had any recent accidents, financial problems, or even been arrested for a crime that could be relevant to the injury or the motivation to make a false claim.
A recorded statement from the claimant and interviews of witnesses to the injury are often assigned by businesses and/or third party administrators to outside investigators as mentioned above.
If malingering or outright fraud is suspected, activities monitoring/surveillance is also often requested. Surveillance with video filming of observable activity is an effective method for disproving a claim involving soft tissue injuries. Surveillance is generally more expensive that other types of investigations, but is usually the best method for proving fraud in injury cases.
In addition to fraud and workers' compensation investigations, businesses hire outside investigators for many other services including trade mark and copyright infringement, due diligence, asset location and/or determination and recovery, pre-employment screening, sexual harassment, drug problems and violence in the workplace.
Civil and Criminal Trial Preparation:
Investigators are frequently hired by attorneys for all types of civil and criminal trial preparation. In addition to the types of investigations already mentioned, the investigator frequently assists the attorney in finding experts, taking photographs, case analysis, planning the trial strategy, and even helping in selecting the jury.
Because the investigator may work with many attorneys and gain an extensive knowledge of the justice system, the investigator often becomes an excellent resource for attorneys and businesses in all phases of trial preparation.
When hiring an investigator, both you and your investigator should be knowledgeable and respectful of privacy rights. With the widespread use of the internet, privacy advocates have become more vocal than ever about real and perceived violations of privacy. You do not want your investigator violating anyone's privacy rights during the investigation or even creating the appearance that someone's privacy rights have been violated.
In the United States of America individuals have the basic "right to be left alone" and the right to the free from undue intrusion and/or harassment by other citizens or by the police. Additionally, every citizen has a right to privacy where there is a "reasonable expectation" that they have privacy.
In cases involving surveillance the courts have ruled that videotaping of the subject is lawful as long as:
- There is not any sound recorded (i.e. In the State of Washington you must have the consent of anyone whose speech is recorded);
- The claimant is viewed and/or filmed in a place that can be seen by anyone passing by;
- The claimant does not have a reason to expect that they have privacy;
- The investigator is not trespassing on the claimant's property while videotaping; and
- The investigator is discreet while they are conducting surveillance.
In addition to the above, you will want to avoid any kind of investigation or use of investigative information that can be construed as objectionable or offensive for the subject, such as giving out personal information about the subject to other witnesses or neighbors, or using pretexts that are annoying the subject or that may cause them alarm or embarrassment.
You should also be aware that you and your investigator cannot obtain a credit report on a subject in most types of investigations unless you have a signed authorization from the subject.
Choosing the right investigator for the job will take some investigation by the client. Licenses, insurance, credentials and references should be checked out thoroughly before the investigator is hired.
The initial budget should be thoroughly discussed and agreed upon and memorialized in writing prior to the commencement of the investigation.
The client needs to be aware that it is not possible for the investigator to guarantee the results of the investigation, but the investigator should be able to give the client some parameters and information so that the client will have realistic expectations of what an investigation might achieve.
There are potential pitfalls to hiring an investigator if the investigation is not conducted legally and discreetly. The client and the investigator should always be respectful of legitimate privacy rights for individuals.
Due to the large variety and types of investigations and investigative methods, it is important for the client to determine the suitability of the investigator for any particular investigation that is desired. The client should not assume that because someone is a licensed investigator that they will be able to handle any type of investigation.
Whenever possible and if the circumstances apply, the investigator should be retained by an attorney to protect the confidentiality of the investigation.
The hiring of a professional investigator is an excellent method for obtaining the vital information for solving problems and/or making important decisions, for businesses as well as for individual citizens. With proper "due diligence" on the part of the client, the utilization of professional investigation services will be well worth the money.