Investigating the Facts

A large part of an attorney’s job gathering the evidence in a commercial dispute is reviewing documents that are produced in discovery.  But that’s not necessarily the only source of evidence.  Often attorneys perform and commission their own investigations, looking for evidence that corroborates their client’s stories, contradicts their adversaries’ claims, and locates defendants and their assets.

Why should you continue to read this post about investigations in commercial disputes?

• You are on your own investigation for great blog content

• You are in a litigation and the document productions don’t contain great evidence for your case

• You want to read about a version of Sherlock Holmes who lives in the United States, is more expensive, and less interesting

Image credit: https://en.wikipedia.org/wiki/Magnifying_glass#/media/File:Magnifying_glass_with_focus_on_paper.png

Lawyers Use Search Engines and Social Media

Lawyers often supplement the evidence in a case with documents they find online.  A first step they often take is using search engines to see if the key people in a lawsuit have written or spoken about the subject.  For example, a plaintiff who claims that she was misled by a statement may have written an article about how she knew the truth about the situation.  Or a defendant who denies using racist language may have used similar language on an online message board.

I personally use social media a lot.  But I advise clients to be very careful when using it because anything they post may become fair game in a litigation.  Sites like LinkedIn help lawyers understand a witness’s education (which may be relevant to her testimony) and previous employers (which may be relevant to her testimony and lead to the discovery of additional witnesses).  Sites like Twitter and Facebook are also helpful to see if witnesses posted material that contradicts their claims, such as when a witness publicly writes about an incident when she claims in court that she was unaware of it.

There are some limits to lawyers’ use of social media.  Because a lawyer has an obligation to be honest, rules may limit them from connecting or “friending” witnesses under false pretenses to get access to their information.  And lawyers generally cannot directly communicate, online or otherwise, with parties whom they know to be represented by counsel. 

Lawyers May Hire Investigators

In addition to using the internet, lawyers often hire private investigators to learn information about adversaries, witnesses, and debtors.  

Investigators often begin by using public record searches.  These records can inform a lawyer about basic facts that may be useful early in a case, such as where a defendant is so that she can be served or where she is subject to jurisdiction. 

Investigators may also ask witnesses questions and gather information that may be used later in a dispute.  Or they may record audio or video that may be useful to prove or disprove a claim.  In those situations, the investigator herself may become a witness in the case.  For that reason, investigators often identify themselves openly and refrain from making false statements to protect their credibility when they testify.  This is also why lawyers do not usually conduct investigations themselves, since rules limit the ability for a lawyer to testify as a witness in the same case in which they represent a client at trial.

In my experience, investigators are not frequently involved in traditional business disputes.  They are used more often in disputes brought by individual plaintiffs, such as personal injury actions or employment disputes.  And they are used frequently to locate defendants who would prefer to hide and their assets.

Various Rules Govern the Use of Independent Research

Once a lawyer learns of a fact through her research or from an investigator, she cannot immediately send it to the court and win the case.  Instead, she has to make sure it is properly authenticated and she can expect her adversary to challenge it.

If the lawyer tries to use the research before trial, she may need to include a sworn statement from an investigator or someone with firsthand knowledge that affirms how she obtained the information.  For example, if an investigator took a photograph of the defendant, she may need to submit a sworn statement that she took the photograph.  Similarly, if a lawyer wants to submit a post that the plaintiff made on Facebook, she may need to have a third person submit a sworn statement that she printed the post from Facebook.

If the lawyer tries to use the evidence at trial, and the parties cannot stipulate to the authenticity of the evidence, the investigator or third person may need to testify on the witness stand about how she acquired the evidence.  And opposing counsel may ask questions of the witness to undermine their credibility, such as questions about how they are paid for their testimony and thus have a financial incentive to lie.

Although successful litigants may recover certain costs from their adversaries when they win, they may not be able to recover the costs of investigators or independent research.  As a result, litigants on a budget may want to be careful about determining whether using investigators is a wise investment for their case.