Private investigators provide a wide range of services to their clients, including surveillance work, security services, locating missing persons and witnesses, background investigations, and accident reconstruction. Your choice of investigator can have a significant impact on the success of the investigation.
When the investigation is conducted for a lawsuit or criminal case, a good investigator can potentially change the outcome of the case. So how do you pick an investigator who is going to be worth your investment, and is likely to get you the results that you need?
In many jurisdictions, private investigators are required to be licensed. In order to obtain a license, investigators may be required to be trained, to have considerable experience working as investigators, and to undergo a background check. A licensed investigator is thus more likely to have skill and experience, and to understand the ethical issues involved with serving as somebody's investigator or working for a law firm. While not all states require investigators to be licensed, in those that do it makes sense to hire a licensed investigator or investigative agency.
Most states have online license verification services that you can use to check to see if an investigator is licensed in that state. You can also ask investigators that you are thinking about hiring to provide you with their license number, and then verify that number with the state's licensing agency.
Although investigators may provide a wide range of services, most investigators will specialize in specific areas of investigation. Some investigators will have formal training. Some may have past work experience that lends itself to certain fields of investigation, such as by having served as a police officer, an arson investigator, or insurance investigator. The more training and experience an investigator holds that is relevant to their work, the more likely it becomes that the investigator will perform those services competently and properly.
A well-trained expert is also less likely to make significant mistakes that can harm your case, such as breaching client confidentiality or taking work that creates a conflict of interest. An investigator with experience within a specific field of investigation may be able to take advantage of knowledge or resources that may not be known to a less qualified investigator.
Before you agree to pay a fee, you should spent time talking with an interviewing a potential investigator. You wouldn't expect to get a job without an interview, and this is no different.
Questions for the Investigator
You can use the interview to ask about the investigator's expertise, and to consider how it relates to your needs. For example, if you are hiring an investigator to work on a criminal case, and find out in the interview that the investigator's expertise is primarily in the field of domestic relations work, consider whether the investigator's experience is consistent with your needs. Perhaps that investigator is good at surveillance, but the investigator's experience probably will not lend itself to understanding forensic evidence, crime scene investigation, or conducting witness interviews.
An investigator may be able to give you references. If you're retaining an expert to provide security consultation for a business, or executive protection services, it is more likely that they will be able to provide a reference. For matters that involve greater discretion or confidentiality, it may be difficult to get references as even identifying a past client may hint at or reveal confidential information. If an investigator has previously worked for law firms, the investigator will often be able to give a lawyer or law firm as a reference without raising an issue of client confidentiality.
Before you enter into a contract with your investigator, you need to address how the investigator or firm will provide services to you. Will all of the work be performed by a single investigator, or will tasks be handled by different members of the firm? If work is going to be handled by another person, is that person trained and qualified?
If the investigator is expected to testify in legal proceedings, how often has the expert previously testified in court? In what type of proceedings was testimony given? What was the outcome for the investigator's client?
Is the investigator or agency insured, with liability and, if appropriate, errors and omissions (E&O) coverage in place?
Particularly in jurisdictions that have no licensing requirement, but to a lesser degree in every state, you need to ask about the investigator's past conduct. Does the investigator or anybody else working at the investigative firm have a criminal record? Have they been arrested or charged with a crime, even if not later convicted? Has the investigator or firm been sued and, if so, what was the lawsuit about and how was it resolved? Has the investigator been the subject of a complaint with the state's licensing agency or a professional organization of investigators and, if so, what was the outcome?
The answers to these questions may not necessarily be deal-breakers, but if an investigator has engaged in serious past misconduct or is reluctant to inform you about that type of history it's a strong sign that you should hire somebody else.
Special Issues for Law Firms
If you are a lawyer who is hiring an investigator, be certain that the investigator understands the nature of the confidential relationship, and how work product doctrine applies to the investigator's work and findings. Do not assume that an investigator who has previous experience as a police officer or working for a prosecutor's office or government agency fully understands work product doctrine.
For example, you may be surprised at how casually a former law enforcement investigator will discuss the details of an investigation, not having internalized that they owe a duty of confidentiality to somebody they instinctively perceive as a suspect or criminal defendant.
If you anticipate that your investigator will testify in court, make sure you fully understand the investigator's background and how it might affect the investigator's credibility in court. You don't want to learn about past ethical issues, brushes with the law, or dubious performance on past cases when your investigator testifies at a deposition or takes the stand in court.
Avoid Liability for an Investigator's Acts
In most cases, a private investigator will be retained as a subcontractor. The investigator will independently provide professional services for an agreed fee, while also potentially working for other clients. If you are a lawyer or company that is considering hiring an in-house investigator, both the stakes and risks are increased. In some investigative work, potential arises that the investigator may commit an act of misconduct. If the investigator is your employee it becomes much more likely that the act of the investigator will be attributable to you or your firm, as compared to the same situation but where the investigator is an independent contractor.
Even with independent contractors, keep in mind that the acts of the investigator can create problems, issues, or even liability for you. While the efforts you take before hiring an investigator should reduce the chances of problems, if you discover any legal or ethical breaches by an investigator that you have hired you may need to terminate the investigator's services to avoid later legal complications. If you know that an investigator is engaged in illegal or ethical activities, and continue to use the investigator, you may later be accused of complicity even if you told the investigator not to repeat that conduct.
Although it is possible that an investigator will be accused of misconduct even though none occurred, the consequences for a client — and perhaps especially an attorney who has retained the investigator — can be significant if they are accused of authorizing or ignoring acts such as trespassing and intimidation, or are accused of using the investigator to harass or stalk the subject of the investigation.
The fees that an investigator will charge, and any costs that might be incurred in addition to fees, will be significantly affected by the nature of the work for which the investigator is hired. Some services may be performed on a flat fee basis, such as a basic background check or a search of electronic records for a missing person, but a deeper or more thorough investigation is likely to cost considerably more.
Some services are inherently expensive, such as the direct surveillance of a person or location. As a simple rule, the more time an investigator must commit to a specific investigation, the more the investigator's services will cost.
Cost may also be affected by the nature and extent of the investigator's experience, the sophistication of the investigator's offices and operations, and how quickly the investigation must be completed.
Whatever fee arrangement you negotiate, you should have a written agreement with your investigator that describes those fees and when they will be earned, and what additional authorization the investigator must seek before performing additional tasks and services that will result in fees or costs not covered by the original authorization or retainer.