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The Case for Outsourcing Investigative Litigation Support

by Thomas D. Thacher II
April 2006

Many of the nation’s largest law firms rely on outside consultants for expert investigative litigation support in their efforts to help win high-profile cases that cannot be avoided or favorably settled. But investigative litigation support should not be limited to the big leagues; it does not have to be a luxury option. The objective of gaining a strategic and tactical advantage over adversaries applies to firms – and disputes -- of all sizes. In our firm’s experience, this goal often can be achieved more effectively, in less time, and at less expense through outsourcing to investigative consulting firms than through in-house resources. Firms that specialize in investigative litigation support are ready at a moment’s notice to assemble highly-skilled, multi-disciplinary teams of investigative experts.

Litigators need to know crucial facts, if they are to protect their clients from adverse court rulings, to help resolve unavoidable disputes, to disprove their adversary’s allegations, or to prove their own. In addition to experienced investigators, auditors, data base researchers and analysts, investigative consulting firms bring industry experts into their teams. For example, in legal disputes involving construction, the investigative consultant firm should be able to field a team of experts in general contracting, architecture and engineering, among other disciplines.

Investigative firms will identify witnesses and run background checks on defendants, witnesses and deposition subjects. They will conduct asset searches aimed at determining whether proposed litigation is cost-justified. They can profile individuals and entire corporations by tapping into their vast network of public databases as well as their own proprietary databases. An effective investigative firm will also have a wide network of contacts to draw upon in law enforcement, regulatory agencies, media and private industries, and will have the ability to perform sophisticated computer forensic audits and other types of analysis.

Immediately after a complaint has been filed, a litigation support firm can work with a law firm to plan, strengthen and execute the firm’s strategy – and anticipate an adversary’s strategy. By gathering hard-to-get facts, the investigative consultant can identify weaknesses and points of vulnerability on both sides. Integrity issues affecting your adversary (even if unrelated to the gravamen of the complaint) can help drive settlements. Has the adversary previously engaged in misconduct similar to that which you allege in your complaint? Even if your adversary has a strong case, will it nonetheless be exposing itself to regulatory or law enforcement scrutiny as a result of the investigation?

Because investigative litigation support specialists are often drawn from the ranks of special prosecutors with a “big picture” perspective, they can provide intelligence charts that offer a revealing graphic view of relationships among people, places and important events. In my experience, this powerful courtroom tool illuminates complex and often otherwise hidden relationships, thereby enhancing the overall view of who did what to whom, and how.

The same arsenal of investigative services for litigation support can be equally, if not more, valuable before litigation begins. This is at a time when an investigation can be targeted at developing a complete and accurate account of what happened. Since pre-litigation investigations are not limited by the rules that come into effect once a complaint has been filed (e.g., proscriptions against contact with employees of an adversary), a litigation support specialist may find evidence that cannot be easily obtained later through the usual avenues of discovery. Our experience has shown that the result of a pre-litigation investigation is often a better informed and more effective approach to the entire process.

Many attorneys routinely bring multi-disciplinary teams of investigative experts into their litigation teams at the earliest hint of trouble. These litigators wouldn’t think of investigating a client’s dispute or conducting litigation without these resources. If you do not already follow this course, you should consider doing so; you are likely to be pleased with the results.

Thomas D. Thacher II is President and CEO of Thacher Associates.
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This article is re-printed from Health and Safety Executive (United Kingdom)

A risk assessment is an important step in protecting your workers and your business, as well as complying with the law. It helps you focus on the risks that really matter in your workplace – the ones with the potential to cause harm. In many instances, straightforward measures can readily control risks, for example, ensuring spillages are cleaned up promptly so people do not slip or cupboard drawers kept closed to ensure people do not trip. For most, that means simple, cheap and effective measures to ensure your most valuable asset – your workforce – is protected.

The law does not expect you to eliminate all risk, but you are required to protect people as far as is ‘reasonably practicable’. This guide tells you how to achieve that with minimum fuss.

What is risk assessment?
A risk assessment is simply a careful examination of what, in your work, could cause harm to people, so that you can weigh up whether you have taken enough precautions or should do more to prevent harm. Workers and others have a right to be protected from harm caused by a failure to take reasonable control measures.

Accidents and ill health can ruin lives and affect your business too if output is lost, machinery is damaged, insurance costs increase or you have to go to court. You are legally required to assess the risks in your workplace so that you put in place a plan to control the risks.

Few workplaces stay the same. Sooner or later, you will bring in new equipment, substances and procedures that could lead to new hazards. It makes sense therefore, to review what you are doing on an ongoing basis.

Look at your risk assessment and think about whether there have been any changes? Are there improvements you still need to make? Have your workers spotted a problem? Have you learnt anything from accidents or near misses? Make sure your risk assessment stays up to date.

When you are running a business it’s all too easy to forget about reviewing your risk assessment – until something has gone wrong and it’s too late. During the year, if there is a significant change, don’t wait: check your risk assessment and where necessary, amend it. If possible, it is best to think about the risk assessment when you’re planning your change – that way you leave yourself more flexibility.
Following information was taken from the Arizona Department of Safety.

Things You Should Know Before Hiring A Private Investigator

Most people considering hiring a private investigator (PI) have never done so or may be making decisions while highly emotional. Regardless, consumers should give such a decision careful thought and thoroughly consider the circumstances before hiring an investigator. Prior to contacting a PI, the consumer should specifically identify what it is they want to know, what their expectations are and how much money they can afford to spend. Additionally, consumers may want to first check on the PI (or agency) using a consumer assistance group (such as the Better Business Bureau), researching reports on the internet, or examining other sources of business information. Please note: A company is not necessarily "bad" because it has complaints registered with such sources - sometimes the complaints are not justified. A consumer may also want to check with the AZ DPS Licensing Unit to determine if the PI (or agency) is properly licensed. In Arizona, any advertisement for a PI agency (or PI) must also contain their license number.

Once a PI is selected, talk to the investigator (or their representative) and discuss the case with them, to include what you want to know, what your expectations are and how much you can afford (total). The PI should readily provide options and inform you if your goals and finances are realistic for the case. If the PI cannot provide this information, you may want to look elsewhere. Once you are in agreement with a PI, a written contract may be drawn up that specifically states what will be done, deadlines, fees, frequency of reports, estimated costs, etc, so that no significant issues are left unknown. While a written contract is not required by law, the lack of such an instrument can prove detrimental for both the PI and the client if problems later arise. Once the PI has completed the agreed upon work, the client is required to pay the PI (or as otherwise agreed upon) before the PI is required to provide a case report to the client. The case report may be written or verbal.

Violation of any statute related to PI's or PI agencies is a class 1 misdemeanor (ARS 32-2458).

The following are common issues between PI's and their clients and are provided for the benefit of both parties. This DOES NOT constitute legal advice nor does it interpret law or administrative rules:

1. While most private investigators are competent and manage their affairs in a professional manner, the Licensing Unit has received a number of complaints related to misunderstandings about services provided and fees. Many times, consumers believe that their retainer will cover ALL of the costs for their case. This simply may not be true. Consumers must be aware that a retainer is normally required before a PI will do any work on your case and that payment of a retainer in no way means there will not be further billing for services (unless it is specified in a contract). Initial billing is normally deducted from the retainer and once that runs out, the client is normally notified. Anyone seeking the services of a PI should consider obtaining a written contract that details what the consumer wants, what the fees will be, time limits and what the PI can actually perform. No questions should go unanswered. If you are comfortable with the PI, verbal contracts are permitted and common, however, you may have difficulties if problems later occur and there is no written agreement.

2. Oftentimes, PI's will bill consumers for phone calls, making copies, office consultations and in particular, "stand-by" time. Stand-by time usually occurs when you are directing a PI to wait on your behalf for an event to occur, such as the subject of an investigation to go somewhere. A PI at their office or home on "stand-by" may legally bill you for this time - make sure you and the PI understand what is expected.

3. Generally, every person performing PI services in Arizona must be licensed by the AZ DPS Licensing Unit, although there are a few exceptions. PI's are provided an ID card that shows who they are and when their license expires - ask to see their PI ID card and record the license number and expiration date. Additionally, PI agencies are provided a wall license that must be clearly displayed at their place of business - ask to see that as well. Report anyone claiming to be a PI who cannot (or will not) produce such licenses or ID to the AZ DPS Licensing Unit at (602) 223-2361.

4. The State of Arizona requires no prior experience for a person to become a PI and only three years of investigative experience to establish a PI agency. As stated previously, many PI's are competent professionals, however, some are simply inexperienced or unqualified to perform certain services such as lie detection, electronic debugging, surveillance, and other highly technical and sophisticated specialties. You should speak candidly with the PI (or agency representative) who will be performing such services and establish what the PI's qualifications and experience are. Normally, persons trained in such specialties can provide specific knowledge or evidence from schools, seminars, prior law enforcement and/or military experience that will demonstrate what their qualifications and experience are. Bottom line - if you are not comfortable with the qualifications of the PI, find someone else.

5. PI's must provide their clients with a case report (written or verbal) at the completion of services, once final payment has been made (or other option has been agreed upon in a contract). In some cases, you and the PI may have agreed that your case will be performed in sections and that each section will require payment at its completion, then the client will receive a report. Other agreements may be established as well. Regardless, know exactly what the terms are before you sign a contract or enter into a verbal agreement. The final report should normally provide a detailed picture of what was done, when it was done, how much time was expended on your case, the results of the investigation and the cost of each component of the investigation, such as: Time expended on surveillance, phone calls, stand-by time, film processing, extra investigators, special equipment, etc. If agreed upon by the client and the PI, a basic verbal report is also appropriate.

6. Persons hiring a PI must be aware that cases will not always turn out the way they expect or hope. Surveillance work, inheritance research, debugging and divorce asset searches are all classic examples of potentially expensive PI work that may prove fruitless for the client, however, PI's may still legally bill you for their time and efforts and you are obligated to pay them. Inability to obtain desirable or favorable results for a client does not legally justify disciplining a PI. For example, the Licensing Unit cannot discipline a PI for his/her inability to locate the person he/she was hired to find.

7. A PI or PI agency may not perform nor advertise executive protection or body guard work unless they are also licensed as a security guard and/or security guard agency (except under very limited circumstances). Additionally, they may not carry concealed weapons unless they have a valid concealed weapon permit.

8. If you are hiring a PI to perform work for you and there is a deadline for that work to be completed, ensure that the date is written into a contract!

9. A client may ask for evidence of work performed by a PI. This evidence could include photographs or videotape of a certain location or event, an audio recording, copies of documents, receipts, etc, to name a few. For example, a client may want to know if a certain car is parked at a hotel in a city 100 miles away. The PI travels to the hotel, locates the car and photographs or videotapes the car (while parked at the hotel) - this would constitute evidence that the PI performed the work. As another example, a client may want a PI to watch a house to determine if any cars pull into the driveway and then videotape the car and occupants. But what happens if the PI is watching the house and no cars arrive so the PI doesn't record any video? There is nothing wrong with this if the client is comfortable with it, however, many PI's will use a video or digital camera to record short (5-20 second) time and date stamped videos (or photos) of the location and offer them to the client as evidence they performed the work. Consumers should be wary of PI's that refuse to show evidence of work performed or at least explain what they have done. Bottom line: Get this requirement in writing if it is important to you.

10. The Licensing Unit has received a number of complaints from consumers who hired someone that claimed to be "working under the license of a PI" and had no license. It is illegal for a person to work as a PI or to claim they are working under a PI's license unless that person has a valid PI license. Ask to see their license and record the number and expiration date. 

11. Generally, it is illegal under federal law (the Gramm-Leach-Bliley Act) for a person (or PI) to obtain account information from financial institutions (such as banks) unless the account owner gives their consent. Oftentimes, the person (or PI) performs an illegal act called "pretexting", by fraudulently obtaining personal information (or is provided such information) from (or on) the subject of the investigation and pretending to be the account holder. This tactic is also used for identity theft. From the FTC website: For example, a pretexter may call, claim he’s from a survey firm, and ask you a few questions. When the pretexter has the information he wants, he uses it to call your financial institution. He pretends to be you or someone with authorized access to your account. He might claim that he’s forgotten his checkbook and needs information about his account. In this way, the pretexter may be able to obtain personal information about you such as your SSN, bank and credit card account numbers, information in your credit report, and the existence and size of your savings and investment portfolios. Use of this tactic is common in divorce cases and law suits.

Keep in mind that some information about you may be a matter of public record, such as whether you own a home, pay your real estate taxes, or have ever filed for bankruptcy. It is not pretexting for another person to collect this kind of information.

Link to the Federal Trade Commission

Article from

12. Generally, it is illegal under federal law (the Telephone Records and Privacy Protection Act of 2006) for a person (or PI) to obtain personal phone records from a telephone company or internet phone provider service (VOIP) without the consent of the account holder. The means of obtaining such information are similar to those used in obtaining account information from financial institutions. From The Library of Congress: Telephone Records and Privacy Protection Act of 2006 - Amends the federal criminal code to prohibit the obtaining, in interstate or foreign commerce, of confidential phone records information from a telecommunications carrier or IP-enabled voice service provider (covered entity) by: (1) making false or fraudulent statements to an employee of a covered entity or to a customer of a covered entity; (2) providing false or fraudulent documents to a covered entity; or (3) accessing customer accounts of a covered entity through the Internet or by fraudulent computer-related activities without prior authorization. Imposes a fine and/or imprisonment of up to 10 years.

Link to The Library of Congress

13. Generally, it is illegal under federal law (the Fair Credit Reporting Act) for a person (or PI) to obtain credit reports without the consent of the credit holder or some other legitimate purpose. As previously stated, the means of obtaining such information oftentimes are similar to those used in obtaining account information from financial institutions ("pretexting"). From the FTC website: § 619. Obtaining information under false pretenses [15 U.S.C. § 1681q] Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.
Integrity Security Solutions, Inc., Security Systems Consultants, Sierra Vista, AZ