Handling Difficult Legal Cases

With few exceptions, police officers are humane, caring folks who only want to do their jobs safely and effectively and go home in one piece at the end of the day. Notice that the phrase "their jobs" does not include the phrase "your job" anywhere in it. They probably will not work at breakneck speed to assist you. Your concerns and your responsibilities to your law firm are not their top priority. They will do their jobs and be as professional as they can, but some cases are significantly more trying and emotionally difficult than others. Sometimes it's difficult for police officers to conceal or control their true feelings during difficult cases: murders of young women or children, murders of fellow cops, hideously violent rapes, child-related abuse or molestation cases, fatal accidents involving children, etc.

If you work for a criminal defense firm, a personal injury firm, or a civil litigation firm that handles high-profile arrests, traffic death cases, or police civil suits, be prepared to face a wide range of emotions when you deal with the officers involved. Here's a case that illustrates how these emotions can affect you as a paralegal.

In 1988, in San Diego, California, patrol officers responded to an "officer needs help" call to find an SDPD officer fatally shot in the head after he had run after some drug-dealing gang members. The suspects fled into the night, thereby initiating an intense manhunt to find the dead officer's killer. By the time the shooting suspect was captured the next day, over 250 officers had participated in the case.

Each officer wrote a short report that documented his or her activities-traffic control, scene protection, SWAT work, command post mo bile van operations, etc.

When the case came to trial over three years later, the defense attorney assigned to handle the shooting suspect's case subpoenaed all of the officers on the scene as possible defense witnesses. As the trial date approached, officers were told by their department to call the defense attorney's paralegal staff and advise their status (vacation, days off, etc.) for the trial.

Imagine the hostility, overt and covert, these paralegals encountered as they spoke with each of these several hundred obviously upset police officers. Most of the officers were at least polite as they "checked in" with the defendant's attorney, but you know some of them could not contain their anger or resentment and took it out on the paralegals assigned to monitor their participation in the case.

As you handle difficult or highly charged cases involving death, injury, children, sex crimes, etc., try to keep your perspective and that of the officers involved in the back of your mind. Don't personalize any negative feelings they may have toward you just because you're trying to do a complete and professional job.

Make friends with a few of the police officers if you can. Always strive to build a professional rapport with certain officers who can give you valuable assistance. If they know they can trust you as a fair person who will not try to humiliate them, trick them, or belittle their efforts, you'll reap a wide range of information and assistance.

Having a good reputation with your local police as an upfront member of the legal community will go a long way toward helping your career. You never know when a case will come across your desk that you can solve with a simple phone call to an officer who knows your work.

Working with Private Investigators (PIs)

One of the most popular television programs of the 1970s and early '80s was "The Rockford Files." This comedy-drama private detective show still exists in syndication and remains a high watermark for this TV genre. Besides the usual weekly follies and foibles involving veteran actor James Garner, the show usually focused on Jim's relation-ship with harried LAPD detective Dennis Becker, played by Joe Santos.

Dennis was forever taking Jim's phone calls, running his license plates, checking out his criminals in the police computer, and showing up to fish him out of jail when things went bad. The poor officer spent the rest of his time trying to appease his crabby boss and carefully planning his arrival to show up in the nick of time to save his buddy Jim from harm.

The idea of the cop befriending the private investigator is not new to television or the movies. These relationships range from true friendship to near hate and disgust for each other. The theme is usually constant: The private detective butts heads with the police as he searches for information. Using brains, skills, and the made-for-TV luck that few police officers have access to, our hero uncovers the true perpetrators of the crime several dangerous minutes before the police stumble onto the same conclusion and show up conveniently to save his bacon in time for another episode.

These shows try to show each character, cop and PI, with a grudging admiration or respect for the other. Shows like "Spenser: For Hire," "Magnum, P.I.," "The Equalizer," and old favorites like "Mannix," "Barnaby Jones," and "Cannon" have followed this plot line since Day One. But while we know life often imitates art, does this relationship of mutual need really exist in the PI world? The answer is a carefully qualified "yes."

You probably can guess that in most cities where private investigators choose to work, they have sprung from the ranks of some nearby law enforcement agency. This connection is logically linked to PI licensing requirements in most states. Just to qualify to take their state-controlled PI test, most applicants must prove they have had a full-time law enforcement, insurance investigation, or legal background. Some people qualify because they have served a sort of "apprenticeship" as employees of a licensed PI or insurance investigation firm, but most come to the job after they retire from or leave their law enforcement positions.

As such, their link to their old agency is no surprise. A twenty-five-year police officer who opens his own PI business probably can count on various overt or covert favors from his old pals who still wear badges. Retired agents from the FBI, IRS, DEA, and other Treasury Department agencies also may call in some "markers" from time to time. Is this legal? Not usually. Is it frowned upon? You bet. Does it still exist? Yes.

The way each side justifies this misuse of information and other confidential assets is by claiming that it's in the interest of "justice." In most instances, the fraud-trained PI who calls his pal in the Re cords Division for a little information about a man who wants to buy his client's business is probably only trying to protect the client's interests and earn his fee by providing valuable information. The accident-reconstruction PI who gets registered owner and license plate information from his friends on patrol is only trying to help his attorney client expedite a personal injury settlement. And the criminal defense PI who calls upon a detective friend to learn if other charges are pending against the client is only trying to protect the attorney from any surprises.

While this behavior goes on in degrees ranging from the rare to the outrageous, two things should concern you: Can the PIs who work for your firm get access to information that could truly help your case? More importantly, can they get this information in a legal, ethical, and timely manner?

The best way to find out about what they can get and what and who they know is to ask them. Since the private investigator business is a highly competitive, low-profit-margin business, most PIs who work as outside contractors or consultants for attorneys are only too happy to tell you what you want to hear. Some of the less scrupulous ones will say and do anything, legal or otherwise, to keep your account.

Like most private enterprise workers, PIs tend to think and act as it relates to their wallets. Since they earn most of their money based on billing hours and flat rate work-rather than by full-time employment with a law firm or under a retainer arrangement-they tend to be motivated largely by their desire to make the most money in the least amount of time.

While this is a perfectly normal way to approach the free enterprise business system we all know and love, it can interfere with good judgment if it gets out of hand. Unchecked by high moral standards and clear ethical values, too much money-chasing can create liability, reputation, or malpractice problems for the individual investigator, the firm for which he or she works, and the attorney who has contracted for investigative services.

If your firm needs the services of a good investigator, concentrate on establishing some hiring guidelines, selection criteria, and work-relationship standards before you hire anyone. The woods are full of PIs, and it only helps everyone concerned to make a careful selection, verify the work rules, and give guidance and support to the one you choose.

If your firm already employs an in-house or outside investigator, you may want to evaluate him or her, based on certain key issues. Remember that malpractice as it relates to PIs under your firm's direction or locus of control can come back to haunt you later.

Consider the following important issues when working with any PI firm:

1. Is the firm licensed by your state? Insured with proper malpractice and other business insurance related to what its investigators do? Private investigators' licenses work differently in each state, but no matter what the rules and regulations are for the individual PI, each PI firm you do business with should be licensed and insured. In some states, each person must have a license to be considered a "private investigator," while in others, employees may work under a "manager's" license while they earn enough hours to qualify for their own licenses.

Make sure the firm you choose is licensed. Ask for its state license number and spend some time verifying it as accurate. A small amount of research can save your firm from embarrassing moments on the witness stand, as when opposing counsel asks your investigator, "By the way, are you licensed in this state?" and hears a sheepish "no" as a reply, This can damage your credibility, ruin your firm's reputation, and kill a perfectly good case for your client. Further, unlicensed PIs are usually uninsured as well, and this could bring financial ruin down on you should they commit malpractice while under your direction.

2. What is the firm's reputation within the PI community? The legal community? With the local police? Some PI firms have a sterling reputation amongst their peers, other attorneys, and even local law enforcement agencies. They work in a timely, professional, and ethical manner, leaving no stone unturned to get the job done, but always in a legal way. They have grudging respect from fellow PIs for their skills (and ability to get and keep new clients), high praise from their attorney clients for their case-saving work, and good grades from local law enforcement authorities for not interfering in ongoing felony cases (which is against the law in many states) or for offering to share information they've collected with the police.

But just as there are good PIs in the business world, there are also some cave-dwellers who help give the entire industry a black eye. These individuals are often unlicensed and are working out of their homes or the corner phone booth. Even if they are licensed, they may be highly unethical. They will do or say anything to an attorney to get hired, and they will often do or say anything to get information on a case.

These so-called shortcuts can mean problems later, especially when you discover that the PI you hired to take a witness statement typed up a half-baked version of what the witness saw, forged the witness's signature, and turned it in as a bona fide document to go into the client's case file.

When you go to bring this PI in for a deposition or a hearing, he has either skipped town, forgotten where he put the file, or worse, will lie under oath, all for his hourly fee.

Just as there are horror stories surrounding unscrupulous lawyers, you'll find an equal number of stories about shoddy, crooked, or just plain ignorant PIs who try to pass themselves off as professionals. Good PIs know there is no easy road to the truth; conscientious PIs may be willing to put in nights and weekends to find out all they can for you.

Word of mouth is usually the best way to find a trustworthy private investigator. Ask other attorneys and other paralegals who they use and schedule an appointment to hear a presentation from them. Professional PI firms will be happy to put on a well-polished presentation for your attorneys explaining their methods, reports, and fees.

3. How long has the firm been in business? Studies of small businesses show that it usually takes from three to five years for any small business to get its feet firmly planted on the ground. After this point, most of the learning process is over, the employee and workload problems have been ironed out, and the business is strong enough to survive.

PI firms offer no exception to this rule. While newer firms may offer low rates and seem eager for your business, they may have some behind-the-scenes problems you don't know about. Smaller, newer PI firms tend to live "on the edge," cashing attorneys' checks at the bank as fast as they get them.

They also may have an air of desperation about them because money may be tight. While they may provide good service in their eagerness to keep you as a client, money concerns may cloud their judgment.

For best results, choose a well-established firm that specializes in your types of cases. It has probably earned its experience with other smaller law firms and has moved up to a more powerful clientele.

4. What is the background and experience of the PIs on staff? Law enforcement, insurance, engineering? Some PIs specialize in specific subjects. Their law enforcement backgrounds may have taught them criminal investigation techniques, auto crash analysis methods, or financial searching skills.

Other PIs may have worked as adjusters for large insurance companies and then have gone out on their own to start their businesses. They may have tremendous experience with car crash cases; worker's compensation settlements; medical, legal, or professional malpractice cases; or a variety of other insurance-based claims. Their expertise could be highly valuable as an aid to settlement.

Lastly, ask if the PIs have qualified in court as expert witnesses and under what subjects they qualify, e.g., traffic accident investigation, narcotics, drunk driving enforcement, police use of force, fraud cases, etc. Make sure you can verify this information before you go to court. Imagine how much time and effort you would waste if the other side were to disqualify your investigator as an expert in court. Always find out these things first.

5. What specific training do staff investigators have? Be ready to read their resumes-also called their "curriculum vitae"-to get an idea of their education, training, work experience, and work history. Some PIs will stress law enforcement credentials, while others will highlight their graduate engineering degrees. Others may have worked in similar investigative-type positions for the federal government, e.g., airplane crash experts, rail car crash investigators, Food and Drug Administration inspectors, etc.

Some firms may offer themselves as full-service investigators, with a staff of several people with differing skills and talents.

6. What kinds of services can the PI firm offer your firm? Here's a short list of some things a full-service PI firm will provide for you: background checks, asset searches, criminal investigations, civil investigations, accident reconstruction, family law case investigations, skip traces and locates, surveillance with photos or video, financial crime investigations, worker's compensation investigations, and polygraph work.

The best way to get high-quality reports is to choose certified experts in their field. Ask what each PI is qualified to do and choose from there.

7. What is the fee structure? Billing minimums? Payment terms? Don't settle for second-rate investigators. Good help is not cheap, but even higher-than-average costs can be cost-effective if the efforts lead to a better success rate for you.

Helping the Private Investigator

In many law offices, the paralegal acts as the point of contact for the private investigator. The PI gets his or her case assignments from the paralegal, including: copies of the client's police report, medical re cords, names and telephone numbers for witnesses, and a complete set of marching orders for the case-what to tackle first, when to complete the work, and any limits on fees, deadlines, or other significant issues.

Many PIs work on an on-call basis, coming into the law office only to pick up new cases or drop off completed reports. While there, they may have an opportunity to chat with the paralegal about various new cases, but in many busy offices, they must rely on the paralegal's written notes and instructions before they proceed.

Working More Effectively with Insurance Adjusters

If you look at the broad legal picture, nearly everything regulated by civil law is also covered by some form of insurance. Whether it's a maritime shipping loss, a worker's compensation case, a car accident, a slip and fall in a shopping center, a homeowner's suit against a builder, a wrongful death case, a product liability case, or a medical or professional malpractice case, nearly everything involves a responsible insurance company as the party that finally pays any settlement bills.

In each of these events where an attorney represents an injured or aggrieved party, it's the insurance company-through its insurance defense lawyers or through an adjuster who works for it-that does the negotiating. Who negotiates on the client's behalf depends on the complexity and dollar amounts involved in the case. As the paralegal profession grows in stature and skill, more attorneys are turning over their high-volume, low-dollar-amount cases to their paralegals to negotiate and settle. This allows the attorneys more time to concentrate on the high-dollar, more specialized cases that need their full attention.

Using Expert Witnesses

The old saying "You have to spend money to make money" applies when using expert witnesses. High-powered experts are rarely cheap, but their expertise, subject knowledge, and courtroom testimony skills can turn your case from an apparent loser into a big-money winner. This financial paradox exists because good expert witnesses know that with their brain power they can command high fees for their court time. This should tell you something your attorneys probably learned early in law school: Get your expert witnesses on the stand quickly and get them off early. Experts may charge between $100 and $1000 per hour, and the meter is running even when they're cooling their heels in the hallways of the courthouse. Long trials and lengthy delays can create sky-high expert witness bills. But cost concerns aside, using qualified experts can mean all the difference in a civil or criminal trial. Since the experts make their livings thinking on their feet, they can sway a jury to your side with only a few power-packed minutes of testimony.

Finding experts can be a hit-or-miss proposition. While you can find specific experts through their ads in various attorneys' magazines, word-of-mouth referrals tend to offer better results. Check the experts' credentials, ask for samples of their trial work, and research their past cases for proof of their courtroom competence.

When an expert witness accepts a case, he or she will need two things to succeed: time and information. You may have the luxury of one but not the other, but if possible, you should give the experts the advantage of a complete case file to review, enough time for them to prepare a court-acceptable report of their findings, and enough time to get themselves ready to testify.

In high-profile criminal cases, the psychologists, evidence experts, medical experts, police experts, and other similar professionals can turn the entire case around on the basis of a single day's testimony. Try to give them the benefit of time as an ally rather than an enemy. Expert witnesses are like snowflakes: Each one is different and each one is unique. Other experts specialize in mining accidents, jet aircraft crashes, train freight-car derailments, metallurgical failures, construction crane accidents, multiple-personality disorders, birth defects, police defensive tactics training, high-speed automobile driving, accidental firearms discharges, electrical fires, and even biological household contaminations. The list of available experts is nearly endless and is limited only to your type of case and the results your attorneys are looking for.

Good outside help-whether it comes from private investigators, process servers, independent adjusters, or expert witnesses-can add significant value to many of your cases. Their support, expertise, and ability to take the "helicopter view" (seeing each case from above as a disinterested third party) is usually worth far more than their fees.