How To Select A Qualified And Credible Private Investigator
Submitted August, 2002
One of the most significant decisions an attorney can make during their career is how to choose a private investigator (or private detective). A good investigator can sometimes be the difference between a prosperous and a dismal outcome. Ask any successful trial attorney and more often than not, they will unofficially praise the work of their investigator. As an experienced private detective, I will attempt to provide not only advice on how to select a qualified investigator, but also how to ensure that they are reliable. First and foremost, I strongly suggest that you not delegate this process to any subordinate or any individual who has little or no experience conducting research or dealing in government bureaucracy.
The most common misconception is that private detectives can usually be found hiding in bushes or hanging out in nightclubs and all-night diners. Modern-day investigators do not reflect Hollywood characters such as Sam Spade or Tom Magnum. Chances are that next time you are sitting in a restaurant enjoying a nice meal and good conversation, there is some type of investigator within “ears-reach” of you or observing someone close by. In order to remain inconspicuous, private detectives always dress accordingly and use props that enable them to blend in with their surroundings. A good detective will have the ability to quickly adapt to a specific environment, or engage an associate who may be better suited for the task.
What We Do…
An experienced private detective can provide a vast array of services. Especially in today’s “high-tech” society, many detective agencies specialize in providing computer-based research such as locating debtors (or “skip-tracing”); conducting pre-employment and pre-marital checks; identifying hidden and moved assets; and criminal background checks. Private investigators are routinely engaged in domestic cases; service of process and subpoenas; working undercover (such as in a corporate environment); and providing assistance in criminal defense cases including juror profiling and trial preparation. Although a resourceful investigator can provide services unknown and unlearned to the commoner, new technologies such as GPS [FN1]allow not only a professional to conduct surveillance, but anyone with the means (and a little practice) can determine the whereabouts of any individual at any given time. Gone are the days of simply paying an informant for information and following subjects only by car or on foot.
The perfection of process and the service of subpoenas are an ever-increasing market for investigative agencies. Our company designates certain individuals to become appointed “permanent process servers” in several jurisdictions within the metropolitan Atlanta area. [FN1a] Permanent, or standing orders, enable an agent to quickly and efficiently serve a defendant. Standing orders allow the detective to immediately begin locating the subject, which increases the chances a defendant can be served before they become aware of any potential litigation. Since most notices are not filed ex-parte, the defendant may choose to flee the jurisdiction once he or she becomes aware of the filing. This may hinder the courts’ ability to successfully serve a defendant through the local sheriff or marshal. The likelihood of a uniformed officer perfecting service on such a defendant is improbable. Because law enforcement is so overwhelmed with this task, they are unable to take the time or expend the additional funding necessary to develop a strategy designed to predict and then surprise these defendants with service. The vast majority of process service requests our company receives are from clients who have been unable to serve the defendant or respondent by conventional means. It is not uncommon for a defendant who has experience in due process to avoid the local authorities. Perfecting process on troublesome defendants is a skill, and hiring a detective in a timely manner may ensure that process is made before a statute of limitation could bar your action.
Most private investigators are also seasoned in the art of surveillance. With today’s technology it is not only easy but expected that investigators secure video footage of numerous civil indiscretions. Parents wanting their minor children observed during prom night and other social occasions; suspected acts of infidelity; and allegations of an “unfit parent” during a custody battle are but a few instances where surveillance can be practical. Private investigators routinely conduct surveillance on insurance claimants to determine the validity of an injury, or to ensure that the applicant is not supplementing their income while drawing benefits. It is also customary for our members to video or photograph defendants who are alleged to be unstable during any attempt to serve process. Quality video or photographic evidence can make months or even years of legal work worthwhile to both you and your client. Depending on the type of practice, most trial attorneys will eventually need an investigator to conduct some sort of surveillance on an opposing party.
A Reliable Starting Point
Depending on your jurisdiction, private detectives are trained, schooled, licensed, and regulated in many different ways. Here in Georgia, private investigators are licensed through the state under the Board of Private Detectives and Securities Agencies. [FN2] Surprisingly, states still exist that do not require an investigator to obtain a license, or work under regulations. [FN2a] If your state has a licensing agency, contact that department in order to ensure that the individual (or company) is certified and is in “good standing” with that department. By making this simple inquiry, you may be able to eliminate a number of prospects simply because of their failure to comply with governmental regulations or because of possible legal or ethical indiscretions.
Once you have narrowed your list of possibilities, contact all necessary state, county, and city agencies to inquire (or confirm) that an individual or company possesses an up-to-date business license. Do not forget to check under both the company and the individual’s names as a business license can be applied for and modified rather easily. A business license will tell you when the company was formed, if it is a corporation or a partnership, and who its officers are. Crosscheck those names listed with the state’s listing of licensed investigators to create a list of all individuals who are licensed by that company. Moreover, if the company is incorporated, contact your secretary of state’s office to inquire as to its status there.
If your candidate is properly licensed and holds a valid business permit, the next step is to check their credentials. Do not be apprehensive when asking about an individuals work experience, educational background, or additional training received. The more formal education a PI has, the more likely they can assist you with a variety of fundamental tasks. For example, a PI who is familiar with search and seizure, stalking, and hearsay will be more methodical during the course of their investigation, during trial preparation and better prepared for both direct and cross-examination. An educated PI will also be more likely to refrain from committing certain tortious acts (discussed later) if they have the foresight to apply the elements and repercussions of those acts.
Scholastic credentials alone do not make an exceptional detective. One thing that can separate investigators from one another is the ability to quickly and efficiently acquire information through the use of informants and even a few uncommon means. Private detectives are extremely adept at the artful task of gathering information that is either unknown or unavailable to the nonprofessional (including paralegals). Although it is wise to have an investigator with an educational background, there can be no substitute for resourcefulness. Your job, if you choose to accept it, is to find an effective balance between the two qualifications so that you get the best of both worlds.
Interview the Candidate
Conduct a formal interview with the prospective applicant. Depending on your area of practice, comprise a list of questions that relate directly to your area of law. If an investigator tells you they have 10 years experience in criminal defense, and your main area of practice is divorce and family law, you may want to look elsewhere. Private detectives, like attorneys, usually specialize in specific areas of law, and will devote much of their time and subsequent education in that chosen area. You should also ask point blank if they or anyone employed by them has ever been arrested for a crime and if their company or any of those same individuals have ever been a defendant in a civil suit or complaint. Make sure that before you continue with the interview, the candidate answers your questions to your complete satisfaction. You can safely assume that an applicant who shows signs of uncertainty is not being candid and that you look elsewhere.
Affiliations and Certification
Private detectives are sometimes affiliated with one of several organizations that pledge to the public that their members are following certain standards and guidelines. The two most popular groups are the National Association of Legal Investigators [FN3] and the American Society of Industrial Security. [FN4] Be wary of placing too much emphasis on such affiliations. Most organizations have very little, if any authority to strictly monitor or compel members to conform to certain standards or even expel the agency if it should become formally charged or impoverished due to complaints or legal troubles. Your best bet is to contact the obligatory governmental agencies mentioned above to exclude prospects.
Lastly, contact other attorneys and other professionals who have used private investigators and get recommendations. Although the majority of companies advertise in the local telephone directory and other publications, there is no substitute for a referral. Nearly all of our new cases come from either an attorney referral or recommendation by a past customer. Contrary to popular belief, ethical standards and reputation are extremely important in this field and no circumstance can exist that could motivate an honest detective to jeopardize their license and standing in the legal community.
On Staff (In-house) or Subcontract?
Once you have narrowed the field to one or two possibilities, you should begin to address how this individual will be associated with your firm. Whether you directly employ or subcontract the company, liability should be a major concern. Unfortunately, in the course of any investigation, even a good detective can be falsely accused of committing various torts such as trespass, invasion of privacy, and stalking. Depending on how your relationship with the investigator is structured, there is a consensus that a detective’s actions can give rise to tort liability not only on the part of the detective, but also on the employer. [FN5] Before commencing with any assignment, always insist on proof of adequate liability or E&O coverage. Any arrangement should be memorialized along with any subsequent issues such as the duties, responsibilities, and financial obligations of each party.
Remember, when you hire an agency to conduct an investigation, they are doing so on your behalf and with your approval. For example, when conducting a criminal investigation, I routinely distribute my own business card as well as that of the case attorney because witnesses, victims, and other people will often ask who I am working for or who I represent.
Costs and Fees
The costs for a, investigator will vary greatly depending on the types of services desired. Rates for surveillance and special investigative work will generally be greater than that for servicing process or conducting research. Costs for conducting research will fluctuate depending on the type and number of databases that are accessed, the cost of informants, and the speed at which the information is needed. As we all know, most clients want the information “yesterday” which causes the agency to prioritize its list of jobs in order to accommodate their most demanding clients.
The main reason surveillance and investigative work may be more expensive lies with one word – manpower. When an individual investigator is “in the field,” he is considered immobile; that is, he is unable to engage in any other activity other than the task at hand. On the other hand, an investigator who is conducting research may be able to complete several jobs at one location or even while in limbo, such as waiting to testify. Moreover, a detective who possesses a specialized service or has completed expert training may command a higher rate. This is sometimes necessary to cover infrequent and costly expenses such as special insurance, use of rare and sophisticated equipment and even providing expert testimony. Just as your client has come to you seeking professional advice, do not be disgruntled if an investigator informs you that a certain service will be at a premium, especially if his credentials justify it.
This can be the most confusing and yet the most important area in any business arrangement. First, you must decide who will be responsible for compensating the investigator. With regard to civil matters, there are two ways to accomplish this, both of which will affect the privilege of attorney-client work product. For instance, if the attorney hires an investigator subsequent to the filing of a divorce action by the opposing party, and absent a showing of necessity and justification by the position, the information compiled by the investigator may be protected. [FN6] In general, once the attorney-client relationship obtains as to a particular matter, the attorney may hire an investigator or obtain statements taken under his direct instruction, which may be deemed a part of what the attorney has done, and thus a part of his work product. [FN7]
If your client elects to hire, or has already hired an investigator, it may be too late to consider invoking the privilege. Many times our company is hired before an attorney is contacted. It is not uncommon for clients to employ the services of a private detective in order to determine if an attorney will be necessary. Much of the time, a client is contacting us because they have no idea how to proceed with an issue, and will not require legal services should we report their suspicions are erroneous. If a potential client informs you they have previously used the services of a detective agency, consult the rules of civil procedure in your jurisdiction to determine if privilege exists.
Finding the right private detective can be an exhaustive and frustrating task, which sometimes leaves attorneys and other clients discontented. Due to the fact that quality investigators are rare, you may find yourself searching far and wide for a reliable company. However, I believe that if you follow a few simple guidelines, incorporate some common sense, and trust your instincts, your search, when concluded, will have been worthwhile.
[FN1] Global Positioning System (or GPS) is a collection of satellites owned by the U.S. Government that provides highly accurate, worldwide positioning and navigation information, 24 hours a day. It is made up of twenty-four NAVSTAR GPS satellites, which orbit 12,000 miles above the earth, constantly transmitting the precise time and their position in space. GPS receivers on (or near) the earth's surface, listen in on the information received from three to twelve satellites and, from that, determine the precise location of the receiver, as well as how fast and in what direction it is moving.
[FN1a] Many county state and superior courts will allow for the appointment of “permanent process servers.” Check with your county clerk to determine if this service is available and a listing of agencies that are approved. Here in metro Atlanta, Fulton, Dekalb, Cobb and Bartow counties currently allow for such appointments.
[FN2] The Georgia Board of Private Detective and Security Agencies is under the Georgia Secretary of State’s Office 237 Coliseum Drive Macon, GA 31217-3858, (478) 207-1460, and is regulated under O.C.G.A. 43-38-1, the "Georgia Private Detective and Security Agencies Act."
[FN3] http://www.nalionline.org/ The primary focus of NALI is to conduct investigations related to litigation. Membership in NALI is open to all professional legal investigators who are actively engaged in negligence investigations for the plaintiff and/or criminal defense, and who are employed by investigative firms, law firms, or public defender agencies. An applicant must have a minimum of 24 months of documented full-time employment in this endeavor.
[FN4] http://www.asisonline.org/ The American Society for Industrial Security is the largest international educational organization for security professionals, with over 32,000 members worldwide. ASIS is dedicated to increasing the effectiveness and productivity of security professionals by developing educational programs and materials that focus on both the fundamentals and the most recent advancements in security management.
[FN5] Noble v. Sears Roebuck & Co., 33 Cal.App.3d 654 (1973). See also “Liability of Hiring Private Investigator,” 73 ALR 3d 1175. This principle appears to have been followed in Ellenburg v. Pinkerton’s Inc. 125 Ga.App.648, 188 S.E.2d 911 (1972). where the employer of a private detective agency was held liable to a third person for an invasion of privacy committed during the course of an investigation by the agency's personnel, despite the fact that the agency was employed as an independent contractor.
About the Author: Jeff Starnes is a Licensed Private Investigator with over 15 years experience in investigative and law enforcement-related areas. He has a B.S with a major in Criminal Justice from Georgia State University and a J.D. from John Marshall Law School in Atlanta. Jeff is an Associate Partner with Noland and Associates Private Investigations based in Marietta, Georgia.
Copyright © 2002 Jeffrey L. Starnes.All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.