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THE ESSENTIALS OF LITIGATION INVESTIGATIONS
Copyright 2002 by Michael Corwin. Revised 2011. Printed in the United States of America. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage or retrieval system without written permission from the author, except for the sample forms contained in the Appendix. Author contact information: Michael Corwin Corwin Research & Investigations, LLC 11024 Montgomery Blvd. NE, # 128 Albuquerque, NM 87111 Phone: (505) 298-4451 Fax: (505) 298-4537 E-mail: firstname.lastname@example.org
Approved for Continuing Education for Private Investigators pursuant to NMAC 22.214.171.124.
TABLE OF CONTENTS
Acknowledgments About the Author Introduction Author’s Note Section One Chapter 1. 2. 3. 4. Section Two 5. 6. 7. 8. 9. 10. 11. 12. 13. Section Three 14. The Tools of Investigation The Interview Locating and Reviewing Public Records Other Sources of Information Investigative Photography Conducting Investigations Skip Tracing Conducting a Background Investigation Investigating an Auto Accident Conducting an Asset Search Employment Discrimination Investigations Conducting a Civil Rights Investigation Criminal Defense Investigation Conducting a Wrongful Death Investigation Investigating the Investigation Case Organization Organizing the Information Appendix Sample Reports and Forms Glossary Index 9 10 49 80 87 92 94 115 123 131 136 143 151 157 163 167 168 175 176 192 197
He operates the firm of Corwin Research & Investigations. Corwin also provides consulting services on the adequacy of investigations and in house investigation training to legal professionals. He has been a featured speaker at conferences and seminars. LLC in Albuquerque. 4 . New Mexico. Corwin’s cases have been featured in the local and national media. has been conducting civil and criminal litigation investigations since 1988. including Dateline NBC. a licensed private investigator. Corwin has written several articles on investigations for the legal community and is the co-author of the training manual “Skip Tracing in New Mexico”.ABOUT THE AUTHOR Michael Corwin.
Sample basic investigations cover locating a witness and a judgment debtor. Instead. a litigation investigation differs from the formal discovery process used by attorneys to gather information as they prepare a case for trial or settlement negotiation. The book shows how to create a cost-effective investigation strategy. conducting a background investigation of a residential care facility and its employees. Topics covered in the first section include how to conduct an effective interview. and conducting an asset investigation. photographs and videotape the information that you have developed. An investigation is not governed by the rules of civil or criminal procedure and does not rely. In many cases. reports. legal assistants and investigators who each have a role in litigation investigations. and teaches the nuts and bolts of how to conduct an investigation that will lead to information useable during trial or settlement negotiation. what types of information public records often contain. Designing and implementing an effective investigation plays a significant role in determining a case’s outcome. how to locate and review public records. The first section of the book discusses the fundamental tools essential to conducting an investigation. More complex sample litigation investigations cover such topics as employment discrimination.INTRODUCTION This curriculum details some of the tricks of the trade that I have learned during the past fourteen years while conducting over a thousand civil and criminal litigation investigations on matters ranging from auto accidents to homicides. it is the information developed through investigation and not discovery that motivates opposing counsel to settle or jurors to rule favorably at trial. For the purposes of this book. how to use the Internet and your local newspaper to assist your research. The second section of the curriculum is devoted to conducting a variety of common litigation investigations. wrongful death personal injury and 5 . as discovery does. This curriculum is designed to benefit attorneys. civil rights litigation. an investigation develops information from sources independent of the opposing party. and how to document and record in notes. upon the opposing party to produce information. conducting an auto accident investigation. paralegals.
There is also a chapter on evaluating the sufficiency of an opposing party’s investigation. as more and more.criminal defense. 6 . This section also includes a variety of sample forms and checklists that can be used to keep track of the work performed throughout the investigative process. as it needs to be readily available to prepare for trial or settlement. The third section of the curriculum covers how to keep the information you developed in an organized manner that allows you easily to locate important information as needed. liability can center upon whether a party conducted a good faith investigation before taking a given action. The ability to organize the information is critical.
because local regulations can differ. legal or not. Consult an attorney should you require advice on specific legal issues. 7 . it is best to check with the appropriate authorities or do further research should there be any questions regarding your communities’ regulations. However.AUTHOR’S NOTE Investigators have a reputation for using any trick in the book. Therefore. the investigative approach outlined in this curriculum consists of legally permissible techniques and is offered for informational purposes only. it is not possible to determine if all of the information sources discussed in the book are legal in your community. none of the information contained in this book should be construed as legal advice. this reputation is somewhat deserved as too many investigators operate in a gray legal area. Accordingly. Further. often with their client’s tacit authorization. to get the information they desire. I use only legal and ethical investigative methods to obtain information on behalf of my clients. Unfortunately.
SECTION ONE: THE TOOLS OF INVESTIGATION 8 .
people and documents. it helps reduce litigation costs by lessening dependence upon depositions. and testimony is the backbone of our legal process. signed statements and interview summaries 9 . and. learning to conduct an effective interview is the single most important skill for the case preparation investigator to develop. finally. it educates witnesses to the themes of your case. An effective interview serves several purposes: it helps provide information that guides litigation strategy. it allows counsel to learn about unfavorable information without having opposing counsel present.CHAPTER ONE THE INTERVIEW Investigators primarily work with two types of sources to develop information for use in civil and criminal litigation. it helps to humanize your client. OVERVIEW ● Interview Preparation ● Making contact with the witness ● Sample witness encounters ● Building rapport with witnesses ● Overcoming objections ● Interview problems ● Note taking. Since most information learned during the course of an investigation comes from people.
begins in law school. Lawyers are trained early on in the importance of controlling information. The least effective approach to conducting an interview is to treat the witness with a “just the facts” or “need to know only” attitude. Doing so requires understanding the six elements of effective interviews. Each interview that you conduct will have a different goal to accomplish. overcoming objections. which works best as an informal conversation between a person seeking information and a person possessing information. successful interview preparation comes from identifying and developing interview themes. 10 . Having a sense of what information you are after and how that information fits into the big picture is essential to interview preparation. This type of thinking undermines your ability to develop information through the interview process. the Q and A and documenting the information developed during the interview. Advice such as “Never ask a question that you don’t already know the answer to”. which are adversarial in nature. It is important that you determine what that goal is prior to conducting your interview. You must focus more on listening and less on asking questions than an attorney would do at trial or in a deposition. interviews require that you develop rapport with the witness in order to be successful. contact. In order to get the information you must motivate the witness to give you the information. The Six Elements of Effective Interviewing The interview process consists of six elements: preparation. Interview Preparation While an interview seeks to develop specific facts.An Interview is Not an Interrogation Unlike an interrogation or cross-examination. rapport building. Conducting an interview without a goal is nothing more than a fishing expedition and is little more than a waste of time.
which hinders pursuing new information that arises during an interview. Then double-check your outline for any critical issues that you may have missed. Organizing and Outlining the Interview Subject Material Once you have reviewed any pertinent materials and determined the goals for the interview. Within each area identify the relevant players (who). As you review these documents. Preparing all of your questions in advance leads to a very stilted interview without give and take. such as reviewing a court file in preparation for conducting an interview of a person that previously sued a party to your current action for fraud. You may not get a second shot at the interview.Collect and Review All Relevant Background Materials To begin your preparation. where you write down each and every question that you want to ask the witness. collect and review any materials that you have about the subject matter of your interview. locations and relevant time periods that pertain to the subject matter of the interview. Also. the elements of the situation (what. The left margin provides just enough space to make this list and allows you to glance at the information without having to shuffle through other 11 . Or more time consuming. write down the main points and issues to be covered during the interview in the left margin of your notepad. keep an eye on the overall purpose of your interview. so make sure that you cover all of the main points. where. Avoid the checklist approach to interviews. To ensure that you cover the most critical information without writing up each and every question. even if you have to interview multiple people about the same incident. begin by outlining the general areas that you need to cover with the witness. including what points need to be locked in and what facts need to be downplayed or refuted. write down any names that you will need to remember during the interview. when and how) and the motivations of the players (why). Also. This can be fairly basic. use the document review process to become familiar with the cast of characters. Trying to stick to a predetermined list of questions can lead to frustration if the witness’s answers regularly stray from the questions on the list. such as reading and understanding the accident report before interviewing a witness to an auto accident.
if you ask a witness to an auto accident. Try to keep this list fairly short. “What drew your attention to the situation?” the witness will more likely respond. 12 . Writing down the main issues ensures that you will cover all critical issues. But.” General questions can be followed up with more specific questions in response to the answers provided by the witness. keep in mind that the words you chose may have a direct impact on the outcome of the interview. yet allows you the flexibility to follow any new directions that may arise during the interview. so I looked over in the direction of the screech.papers. but make sure that that you can refer to this paper fairly easily during the course of the interview to keep from altering the pace of the interview. Role-Playing Litigation interviews often deal with subject matter that people find uncomfortable to talk about. and I saw as one car tried to stop entering the intersection after the light had already turned red. it can be beneficial to role-play as part of your preparation for conducting an interview. as its presence can be intimidating to the witness. “Two cars hitting each other”. As you role-play. Practice asking your questions in a more general and open-ended manner to train yourself to avoid asking questions that lead only to a yes or no answer. Role-playing allows you to work out the kinks in your approach to the interview. if you ask. You want to learn to ask questions in a manner that gets the witness to open up to you. “What did you see at the time of the accident?” the witness might respond. It also allows you to anticipate and prepare for possible responses in order to overcome any objections the witness raises about being interviewed. Therefore. Role-playing also allows you to work on the manner in which you ask a question. You can also write this information down on a separate piece of paper. For example. “I heard tires screeching. But it couldn’t stop so it hit the car that had the green light as it came through the intersection.
and prepared an approach to the questions you need to ask. while “asking questions” implies to the witness that he or she is your primary source of information. there is one final step of preparation before you are ready to conduct the interview. You must determine whether to contact the person by telephone or in person. when initiating contact with a witness for the first time. Being the sole source of information is much more intimidating to a person than simply corroborating information that someone else has already provided. and the more formal a person is during an interview. Think about what approach would make you the most comfortable during the interview and what words and phrases would cause you to shut down as a witness.The Words You Choose During your interview preparation you should focus on not just what to ask. Try to put yourself in the witness’s place and think about how you would respond to being approached for the interview. than “ask a few questions”. It is preferable to “go over” some information with a witness. Try to keep your wording as innocuous sounding as possible. as these types of questions put the witness on the defensive since they indicate to the witness that you may hold a view about the information that is contrary to the witness’s view. People tend to tighten up and respond very formally to an “investigation”. rather. the less there will be a free flow of information. determined the key issues to cover. and whether or not to set an appointment for an interview or just show up unannounced at the person’s doorstep. For example. After you have reviewed the background information. A defensive witness is less likely to elaborate on an answer than a witness who feels validated by your acceptance of his or her perspective. Avoid starting questions with “Wouldn’t you say” or “Didn’t you see”. Using the term “go over” implies to the witness that you are corroborating information you already know. 13 . but how to ask it in a manner that increases the cooperation of the witness. avoid telling her that you are “investigating” a matter. say that you are “looking into” a matter. Instead.
in person contact results in a better success rate at getting an interview. it is more difficult for a person to decline to be interviewed by someone standing at his or her doorstep since we culturally are taught to be hospitable to guests. Thus. Witness appearance relates to how well a witness communicates information. However. and most people are more comfortable talking to someone in person since they can assess the other person in the conversation. On the other hand. telephone interviews may be necessary. For example. an investigator must learn to use the phone effectively. Finally. Also. conducting an interview in person is the best way to get information. The telephone is faster and allows you to reach more people and cast a wider net for information. or if you have to interview a large number of people within a very short period of time. Finally. These factors are important to assess since they can influence a jury in how they perceive a witness’s testimony. new technologies that identify the caller and the pervasive use of voice mail have made it more difficult to reach an actual person by telephone. Therefore. there are some cases that just do not have the budget for interviews to be conducted in person. 14 . Seeing the witness in person makes it easier to assess the person’s “witness appearance” at trial or deposition. a person’s appearance and the appearance of their surroundings offer additional insight and information about the nature of the person. many people view a phone call as very intrusive and are more than happy to hang up the phone as soon as the first opportunity arises. what type of personality the witness has and what type of physical appearance the witness makes. Rapport is easier to establish when you meet face to face. there are times when using the telephone to contact the witness makes sense. Deciding Whether to Contact In Person or By Telephone When practical.Making Contact with the Witness There are several factors that go into determining whether to contact an individual in person or by telephone. Further. if the witness lives too far away for you economically to travel to the location.
Cold Call vs. such as an auto accident. Too often people can be talked out of participating in the legal process by their friends or family who don’t think they should get involved. If the subject matter is something that will make a person uncomfortable. allowing you to build rapport with the witness. it is definitely better to show up at the door unannounced.Fundamentals of the In-person Interview Once a determination is made to contact the witness in person. Appointment There are a few simple guidelines that can help you to determine which approach is most appropriate. A cold call also 15 . such as a current employee working for a defendant company in an employment discrimination case. Further. or an employee of a residential care facility that you are considering suing for negligence. the next step is to decide whether to call first and set up an appointment to meet. some people will “no show” for the interview. On the other hand. or just show up as a cold call at the person’s home or place of business. There are two fundamental reasons for the better success rate: the element of surprise. if the witness is known to be favorable to your client. In addition. it’s preferable to telephone and make an appointment first. The Cold Call Interview The in-person cold call approach affords the best chance for obtaining information from a witness. if the interview subject matter is fairly conventional. Don’t give them the chance to think about the subject matter of the interview. If given the opportunity to think it over. and the opportunity to create a good first impression. just show up at the door. The cold call approach is particularly effective in situations where a witness might be afraid to talk. you should call and set an appointment out of courtesy for his or her time constraints. if you suspect the witness will be hostile to your cause. as the witness is caught with his defenses down making it harder to filter his answers.
you must dress in a manner that increases the likelihood that the witness will want to speak with you. To get the opportunity to conduct the interview you must give the 16 . except in very rural areas where people may equate being too dressed up with dishonesty. Women have a little more flexibility in their attire. but should wear a minimal amount of jewelry and should avoid trendy clothing. it does mean that you need to keep your hair in a style that doesn’t cause you to be pre-judged by the witness. there will be very few barriers to succeeding with the interview. there is a chance that a witness may shut you down before you have had a chance to tell him why you are at his front door. and a segment of the population does not respond well to police officers.gives the witness a chance to assess you. The Approach During a cold call interview. and makes it hard for the witness to take you seriously. There is no point in using your clothing to express the real you if that means getting shut down by the witness. Hairstyles are also very personal. If you look too much like a police officer. This does not mean that you need to wear your hair in a crew cut or a severe French braid. This includes facial hair as well. Generally speaking. Inappropriate clothing conveys a message of disrespect to the host. Hairstyles often say more about a person than clothing. But. success or failure is determined by your initial contact with the witness. The best guide is to dress like you are going to a stranger’s house. It is very important that you wear your hair in a manner that allows you to be viewed as a professional. If the witness is comfortable with you and your appearance. Appearances Do Matter When conducting an in-person interview. Therefore. Your appearance should convey professionalism. Many police officers wear mustaches. you must be very aware of your own appearance and how that affects other people. An in-person cold call affords you only about ten seconds to convince a witness to talk to you. men should wear a jacket or a jacket and tie.
was injured. Sample Witness Encounter Investigator: Hi! My name is Mike Corwin. This sample dialogue illustrates the general approach to contacting a person at his front door. This will only take a few minutes. He represents a man named Low Blow who was injured a few weeks ago at the Sloppy Suds Bar.person a reason to talk to you. Would you have a few minutes? Bartender: Well. I don’t think I’ve heard that name before so I don’t think I’ll be of much help. Besides. where there was a fight in which the client. The witness is told that several people are being contacted in an effort to keep the witness from feeling singled out. Getting a person to talk to you is very much like sales: once you satisfactorily address important objections stated by the witness. um. I’m contacting a bunch of people who were at the bar around the time he was injured. People usually assume that a stranger who knocks on the door is trying to sell them something. is directly addressed. that he did not know the name of the client. The word “contacting” was used instead of “interviewing”. Having the business card visible distinguishes you from a salesman. you will be able to complete the interview. an innocent bystander. Lastly. Tell the witness who you are and why you are there to speak with him. it often helps to take a couple of deep breaths to be relaxed and focused before ringing the doorbell. the investigator is cold calling a bartender employed at a bar. while the other objection. In the scenario below. always write the names of the lawyer and the client on the back of your business card. to create an informal feel regarding the nature of the process. I guess. (looking at his watch) I have to be at work at 5:00 o’clock. The following approach has been used successfully to get witnesses to consent to an interview when you show up unannounced at their door. who you represent and why you are standing at his front door. To further reinforce this. Have the card clearly displayed in your hand by the time you reach the front door. 17 . Finally. First. about the amount of time that he had available. I am an investigator working with an attorney named Straight Shooter. Investigator: Sure that’s no problem. a decision was made to ignore one objection offered by the bartender. it is very important to be up front with the witness about who you are.
Do not rush to ask your next question. we will address how to overcome the most common objections that you will encounter when trying to conduct an interview. spend a minute or two building rapport with him. 18 .Thus. such as: ● “When did you first notice that something was happening?” ● “How often did the guys involved in the altercation come to the bar?” ● “What other similar incidents have occurred at the bar?” These questions are hard to answer with a simple yes or no and are designed to produce answers that lead to clarifying follow-up questions. what. the time objection needs to be addressed in order to move the process along. Later in the chapter. and then open your notebook and start asking questions. when. In either case. remain silent long enough to allow the witness to give a complete answer. without objection. you will need to transition from the contact portion of the interview process into the Q & A portion of the interview as soon as the opportunity presents itself. When you reach the point where you have gotten most of the information that you need from this witness. Start with general questions to transition into the interview. you can launch into the who. Once the witness has given you an answer. In this scenario. good opening questions include: ● “How long have you worked at the bar?” ● “How do you like working there?” The opening questions serve two purposes: to ease the stress level of the witness and to get the witness talking. why and how of the incident you are investigating. Once you ask a question. witnesses will offer objections. while on many other occasions witnesses will consent. Keep the witness talking. the more he talks the more information you will get. Keep your questions open ended. Once you have gotten the witness to start talking. The In Person Interview Q & A Once the witness lets you into his home. to being interviewed. he may feel prompted by the silence to provide more information. always ask him if there is anyone else you should contact. where. On some occasions.
the witness will become comfortable enough with you that you can telephone him or her with follow up questions or even schedule a second interview. make sure that you make brief but regular eye contact with the witness. when conducting an in-person interview. For instance. the person on the other end of the phone line cannot see you and has no idea who you are. One significant advantage of a personal interview over a telephone interview is that. In addition. since you remain in your own surroundings and have all of your reference material handy. Finally. This helps you to leave the witness with a favorable impression of you. if done correctly. it is important to learn the fundamentals of conducting an effective telephone interview. if necessary. the witness will be amenable to further conversation with you.As a general rule. Conversely. Therefore. there can be safety issues involved with going unannounced to a stranger’s house to conduct an in-person cold call. In a telephone interview you have no visual clues that add context to help understand the person that you are interviewing. an invaluable aid should you need further assistance down the road. the words and tone that you use during a 19 . Some people may find it easier to say “no” to being interviewed by an anonymous voice over the phone than they would with a professionally dressed person at their doorstep. close out the process by building additional rapport as you leave. there are differences between the two types of interviews. Motivating the Telephone Witness to Talk with You While the questions you pose during a personal interview and a telephone interview will be similar. Make sure that when you end the interview. Further. Fundamentals of the Telephone Interview There are a variety of cases where in-person interviews may not be practical. tell the person that you appreciate his or her willingness to sit down with you and ask if it would be alright to contact the witness again if you have additional questions. Eye contact helps demonstrate that you are a good listener and helps the witness to feel comfortable with you. some investigators find the telephone interview to be a more comfortable process. Therefore.
I’ve got to get ready to go to work. I have to be there by 6:00. As soon as someone answers the telephone. Bartender: This is Jimmy. The Critical Use of Time Most telephone interviews ought to take place around the dinner hour. therefore. telephone solicitors routinely call people at the same time so it is critical that you distinguish yourself from those solicitors. He represents a man named Low Blow. you need to give the witness a reason to talk with you. Investigator: Jimmy. So I don’t think I can be of any help to you. The best way to do that is to bring him into your thought process and show him why you felt calling him was important. I’m an investigator working with an attorney named Straight Shooter. Sample Telephone Contact Exchanges with a Witness Investigator: Hello. I don’t know that name. immediately identify yourself to the person who answers. this demonstrates that you respect that the witness has a life outside of the case you are working on. and I’m trying to reach Jimmy Bartender. my name is Mike Corwin. At this point you are in danger of losing the interview. Have I caught you at a bad time? Always ask if the time you are calling is convenient for the witness. Try to place the calls between 5:00 PM and 5:45 PM and from 7:15 PM to 8:00 PM so as not to interrupt the actual meal. who was involved in an incident at the Sloppy Suds Bar. including recognizing that your contacting him or her is an imposition on that person’s time. The most important thing is to demonstrate respect for the witness. You do not want the witness to feel imposed upon. 20 . Unfortunately. when most people are home.telephone contact take on a more important role than with a personal contact. If you are lucky the witness will answer the telephone and you can proceed to complete your introduction. Bartender: Well.
When I contacted some other people. there is a good chance that you will reach an answering machine or a caller identification system. Handling Contact with Family Members and Answering Machines With a telephone call unlike an in-person cold call. and once again. With telephone interviews. Since rapport building is somewhat stilted. Unlike a personal interview. leave a message such as the following: 21 . remember to ask for the names of other people you could speak with. because telephone interviews are much shorter than in-person interviews. make sure to tell the witness how much you appreciate his taking the time out to speak with you and ask if you can contact the witness again if needed. If the telephone witness provides you with very good information. thank the witness for his time. Once the subject starts talking. if no one is home. you can slow the witness down by asking follow-up questions. You then have to decide whether or not to leave a message. you need to build rapport during the course of the interview rather than at the beginning. It’s critical that you get the subject to start talking to you as soon as possible. I heard that you were working at the bar around the time it happened. the better the information you will receive. it is a good idea to have a caller identification blocking service on your telephone line that will keep a call from going through if the witness has a caller identification service. the longer you keep the subject talking. start asking your questions right away. start right off with “How did you first realize that something was happening?” You need to be very direct and go into the “5 W’s and the H” as quickly as possible. If you decide to unblock your phone line in order to complete the call. If you will be doing a fair amount of telephone interviews. The Telephone Interview Q& A If the witness has not interrupted you by the time you finish your explanation. try to set up a face to face meeting with him. Low Blow was beaten up by some other patrons in the bar about two weeks ago. Instead of starting with general background questions. As you close out the interview.Investigator: Let me tell you why I’m calling.
If you don’t get a call back after leaving two messages. and I’m trying to get in touch with Jimmy Bartender. It is better to be straightforward with the relative about who you are and why you are calling the witness. Of the six steps involved in the interview process. Investigator: Hi. I am an investigator looking into something that occurred at the bar a couple of weeks ago. Repeat your phone number slowly. and you get an answering machine. Please call me at _______. if the person refuses to speak with you or is unwilling to expand upon his answers. However. Most people do not want to interfere with what they view as formal business. none is more important than the ability to build rapport with the witness. 22 . If there is no caller identification service. my name is Mike Corwin. Under no circumstances should you leave a message that tries to coerce the witness into calling you back. On some occasions. this is Mike Corwin and I’m trying to reach Jimmy Bartender. I’ll go get him. and we are looking into an incident that happened at the Sloppy Suds about two weeks ago. you may want to make an in-person cold call to reach the witness. especially if they know a little bit about the incident under investigation. Thanks. the interview will be unproductive. you will reach a relative of the person you are trying to reach. Relative: What is this about? Investigator: I’m an investigator working with an attorney named Straight Shooter. You will have a much better chance of getting through to the witness if you give the relative a reason for handing off the phone. and are actually happy to help. To be an effective interviewer. I look forward to speaking with you. Relative: Is that about the fight? Hold on. you must learn how to put a witness at ease quickly. No matter how well you prepare for an interview. you should probably leave a message after a couple of attempts without reaching a live person.Investigator: Hi. hang up the first time or two that you call. Try to sound professional and non-threatening. as you will have a better chance of contacting your witness by reaching a live person. Jimmy. Some people will call you back while others will not.
Thus. body language. and recognizing shared beliefs. Further. would have shut the interview down in a second. By accepting that person’s outlook on a situation. I had to interview relatives and friends of the victim on several occasions. i.e.Building Rapport Often the success of an interview hinges upon your ability to relate to the witness. While preparing homicide cases on behalf of criminal defense attorneys in Los Angeles. Building rapport involves: empathizing with the witness. Empathy comes through understanding that each person is affected differently by his or her experiences. California during the late 1980’s and early 1990’s. you become aware of his or her perspective and what is important to the witness. in as much as the pain and suffering experienced by those close to the victim was clearly evident. You cannot see a situation exactly as the witness does since you have not had the same life experiences. If the witness is comfortable with you. you can accommodate the witness’s needs and still achieve the objectives of the interview. through empathy you can show the witness that you recognize his or her perspective about the incident under investigation. 23 . and that the witness may be uncomfortable talking to a stranger who cam knocking at the door. Any attempt to minimize the horrible events that the witnesses went through. the only way to complete the interviews was to convey to the witnesses that few people could comprehend what they had experienced. Thus. this pain and suffering was caused by actions allegedly attributed to our client. The Importance of Empathy Building rapport starts with the ability to empathize with the person you are interviewing. or any claims to understand what they had experienced. determining what concerns a witness has about the interview process. he or she will provide more information to you than a witness who distrusts you. But. These interviews were highly emotional and very difficult to conduct. being a good listener which includes using non-verbal communication.
agree or disagree with the witness’s view regarding his involvement in the process. you will have broken down the first barrier to conducting your interview. Whether you. you have to accept his view as being real to him. Determining a Witness’s Concerns In order to build rapport with the witness. A witness in a criminal case may fear being viewed as a supporter of a “bad” person if he provides information that appears to benefit an individual facing criminal charges. you will need to determine what concerns the witness has about being interviewed. You can help allay some of their concerns or fears by recognizing that those concerns and fears are legitimate. both short and long term. Thus. Asking a witness “Would you have a couple of minutes?” or “Is now a good time?” before launching into an interview is a good way to show that you are aware that the witness has constraints created by day to day living. means approaching the witness in a manner that is respectful of his or her needs.Be Mindful of Each Witness’s Needs Witnesses lead busy lives and have very little time for things outside of work and family. as an experienced legal professional. the most important concern will be the fear that their participation in the legal process will hurt them in some way. The fact that you may need the information now is secondary to the witness’s availability. Therefore. you must balance your need for information with the fact that you are imposing upon the witness in order to get that information. Also a witness living in a bad neighborhood might fear losing police protection if he talks about a specific incident of police misconduct. Time concerns. By recognizing that each witness has his or her own concerns. are often the biggest issue for many witnesses. For example. For some witnesses. especially if he has to testify at a deposition and later at a trial. Perception is reality. Having to take time off from work to testify can be a hardship for a witness. an employee of a defendant company may be fearful of getting fired for being interviewed by the plaintiff’s investigator. 24 . getting the information that you need.
25 . experienced lawyers and investigators often miss critical follow-up questions because they were more concerned about the questions they were asking than about the witness’s answers. yet. The Importance of Being a Good Listener The purpose of an interview is to get information from someone else. builds rapport. and gets the information you seek. The more a person senses that you are listening to him. Too often interviewers are thinking about their next question. This further demonstrates that witness’s needs are important to you.The best way to ease a witness’s concerns is to pay careful attention to what he says and to let the witness know that you are hearing what he tells you. The next section discusses the fundamentals of being a good listener. Finally. It is also a way to educate the witness as to the case from your perspective. and allows you to address those concerns one by one. the more he or she will open up to you and provide more information. The success of an interview often depends on your actually hearing what the other person says. Reflect your understanding of the witness’s concerns through statements like “If I understand what you are saying…” and “so what your saying is…” Such statements clearly convey that the witness’s concerns are being heard. This sounds so basic as to be a non-issue to the litigation professional. Therefore. and are not really listening to what they are being told. ask him directly if there are any issues that he has regarding being interviewed or about the case in general. if you sense that something is bothering the witness. your primary responsibility throughout the interview is to listen to what the witness has to say. Being an attentive listener puts the witness at ease.
The Three Keys to Being a Good Listener The keys to being a good listener are: ● Pay attention to what is being said ● Do not rush the process ● Do not become fixated on the questions you want to ask Interviews often take place in distracting environments. If you believe the witness has not given you a full answer. A good interviewer learns to tune out these distractions and keep the witness from being distracted as well. the answers provided by the witness will lead you to the next question to ask. One of the other problems with preparing a long list of specific questions is that you are predetermining the direction of an interview by guessing at what the witness might answer. Avoid preparing an exhaustive list of questions designed to cover every minute detail. To keep from focusing too much on the questions and not enough on the answers. The old adage that nature abhors a vacuum is very true when it comes to interviews. For example. you will remain flexible enough to explore new information while still ensuring that you have covered the areas that need to be covered. Instead. identify in outline form the critical issues that need to be covered during the interview. dogs barking or loudspeakers announcing fast food orders. Next. and as a result the witness keeps talking to avoid the silence. identify the subject matter that you need to cover. Further. 26 . Often a witness fears that you are secretly judging him or her during a period of silence. By doing so. remain silent when the witness stops. Finally. Often distractions can be used to build rapport by highlighting a common belief or experience that the investigator and witness have in common. Work from an outline and ask open-ended questions that lead to longer answers. Do not ask overly specific questions that can be answered with a yes or no answer. the investigator can tell the witness not to worry about it since his child or pet does the same thing at the investigator’s home. if a small child or pet keeps coming into the room during the interview. being a good listener entails using silence to allow witnesses to fill in the details. and ask about the “five W’s and the H” for each topic. do not become overly concerned about the questions that you need to ask. During a good interview. with children running around.
lean slightly towards the person. it is important for you to learn to use non-verbal communication effectively. you can use silence to determine appropriate follow-up to further explore this new information further. Maintaining eye contact with the witness throughout the interview is an important way to convey these messages. You can also build rapport and demonstrate that you are a good listener through the use of non-verbal communication. The Importance of Maintaining Eye Contact From the moment you first meet the witness until the end of the interview you will need to demonstrate to the witness that you care about what he has to say. some 27 . If the person is relaxed and sitting in an open fashion. If he is sitting with his legs crossed. that you trust him and that he needs to trust you. You do not need to lock eyes with the witness throughout the process. you want to make eye contact for short periods of time. cross your legs. Witnesses are very aware of your body language and what your are conveying to them in this manner. If the witness is nervous and sitting rigidly or if he has a military background or law enforcement background. Do not cross your arms. but try to make eye contact when you ask questions and during periods of silence. Building Rapport Through Non-Verbal Communication When speaking with someone in person you can use body language to help build rapport. You have to balance trying to nurture the witness with the risk of making him uncomfortable.by using silence. around ten seconds or so. If you are caught off guard by an unexpected answer. Typically. Your body language can convey that you are interested in what the person has to say and that you appreciate his views. With each witness you must evaluate what degree of eye contact is most suitable. you can carefully formulate your questions to produce the most useful answers. Therefore. Also. Try to subtly mirror how he is sitting. do the same. Holding someone’s gaze for too long tends to make a witness feel uncomfortable. If you are sitting down while talking to a witness. sit upright and do not slouch in a casual manner.
Take the opportunity to ask a question or two that shows you have an interest in the witness. “I’m just heading out the door to take my son to little league”. Long periods of eye contact coupled with silence create the belief in a witness that you are assessing him in a critical and negative manner. Asking. There are times when maintaining eye contact for a longer period of time may be beneficial. Just make sure that you seem genuinely interested so that you don’t come across as insincere or invasive. In those situations reduce the duration of your eye contact. The next section will help you to overcome the most common objections. you must anticipate spending considerable time convincing people who don’t want to be interviewed. attorneys and political figures. longer periods of eye contact are used to cause the witness discomfort. Something as simple as a dog barking in the background can be used to build rapport with a dog owner. Building Rapport Through Shared Beliefs and Experiences Another excellent means of building rapport comes through recognizing a shared belief or shared experience. 28 . In those situations you are not trying to create an impression of having rapport with the witness. ask what position he plays before you ask the witness for a better time to call back. if you call a witness to a car accident and the witness tells you. This may create in the witness a desire to change that impression. “What kind of dog do you have?” can really open up a conversation. such as police officers. This approach works well with dishonest witnesses and with witnesses that are used to being viewed as an authority figure. Often small talk leads to something you and the witness share in common. Rather. For example. Do not be afraid of small talk during an interview. Most people will consent to an interview without needing too much persuasion. However.people are uncomfortable with even short periods of eye contact.
This objection is the 29 . as that illustrates that the witness is afraid. Overcoming an objection requires quick thinking and the ability to flesh out whether the objection is a smoke screen or is genuine. so you have to prioritize and address those objections that appear to be the most important to the witness. Fear is a powerful motivator and can easily shut down an interview. will consent to being interviewed. you might hear a series of objections such as. “ I don’t know anything about this”. as it requires assessing just how strong the objection is. you will know if the objection is legitimate or just a halfhearted attempt not to get involved in someone else’s problem. This is somewhat more difficult to do. Of the three comments. the next step is to determine whether to address or ignore the objection. For example. When you overcome the big objections. the most telling is the not wanting to “stick my neck out” comment. with a little cajoling. and also easy to prioritize. I don’t like your guy. the second step is to decide whether to directly address the objection or ignore the objection and keep moving forward through the interview process. and whether it is worth trying to overcome. The first step is to get the witness to elaborate on his or her objection. Ignore the Objection vs. However most people. He deserves whatever he gets. Determining the Nature of the Objection You can use a two step approach to determine whether an objection is legitimate or not. Some witnesses offer multiple objections.Overcoming Objections to Being Interviewed There are a variety of reasons why people may initially refuse to be interviewed when you contact them. Once you have made that determination. Address the Objection Once you have gotten the witness to elaborate on his objection. By getting the witness to specify the reason for the reluctance to be interviewed.” All three of these objections are fairly common. the little objections will often go away without having to be addressed. “I don’t want to stick my neck out for someone else’s problem” and “Besides.
In the next section we will address the four most significant objections. Telling the witness that you are talking to a lot of people is a good way of making the process seem routine. By prioritizing the objections you can devote your energies to overcoming objections that can impact on your ability to conduct the interview. Asking the witness at the onset of your contact if you have caught him at a bad time will usually elicit a telling response. the next step is to address the specific objections. Let the witness know that you need to know the good and bad about the situation in order to decide how best to proceed with the case. and determined which pose the biggest threat to the interview. and apply both techniques for overcoming them. you should ignore the objection regarding a lack of knowledge. the information will come out. Open hostility towards your client can also be ignored since it is easy enough to filter out during the interview. You can also say something like “Well then. Lack of Time One of the most common objections that you will hear from a witness is not having enough time to be interviewed. Once you have assessed the nature of the objections. There are two approaches to overcoming the objection: tackling the objection head on and redirecting the witness away from the objection. Generally. The other two objections are opinion statements offered by the witness and as a result are not serious objections. most witnesses will offer an appropriate time for you to contact them. If the time concern is real. as once the ball is rolling. as there are just a few points to cover. the more information you get. 30 . the witness has the opportunity to vent.biggest obstacle of the three objections. In either case.” Dealing with the hostility objection is fairly routine. Thus. If you want to deal with the smaller objections let the witness know that the interview is very routine in nature. we can wrap this up fairly quickly. the objection is legitimate and you should politely ask when the most convenient time would be for you to contact the witness again. your goal is to get the witness to start talking. and the more the witness talks. If the witness responds that he was just getting ready to pick up his child from school or something similarly specific in nature. as the witness does not know what information is important to your case.
You have also conveyed to the witness that you realize the interview is a burden and you are trying to lessen it (empathy). the witness will either object again.” However. it is time for you to fill the vacuum and start asking questions. While this sounds a little pushy.” This way you have eliminated the time problem and reduced the interview problem to a minimum. “I know how that is. People often have legitimate fears about getting involved. but if we can finish up now. minimize the amount of time that you need to conduct the interview. if the witness remains silent after you have downplayed his importance in the process. keep the words you use as informal as possible. They may fear retaliation or being linked to someone who has done something wrong. as I just have a couple of things to cover with you”. once the interview begins. offer the following “I realize that my contacting you is a hassle. the lack of time for the interview will cease to be an issue with the witness who is really not under time pressure. However. then the objection is probably more of a smoke screen. if the response to your question is vague.However. “Looking into” or “checking into” something is fairly innocuous sounding. Try to use your words to create a visual image of the interview process that runs counter to the image the witness conveys to you. At that point. If he is silent start asking your questions. which the witness may appreciate. It seems harder and harder to find enough hours in the day to get everything done. or will most likely wait for your first question. Tell the witness that since he is in a rush you will keep it very short. You can deal directly with the smoke screen objection by showing that you understand his concern. If the witness objects again. I won’t need to bother you again. do push ahead by completing your statement with “But this will only take a few moments. Fear of Involvement Addressing someone’s resistance to getting involved is one of the most difficult objections to overcome. such as having a bunch of errands to run. Begin with 31 . and. In addition. Try to downplay the witness’s role by making him feel that he is just one of a number of people being contacted.
The first is to let the witness know that over 90% of all cases settle before going to trial. which is to flesh out the specific objection the person has about getting involved. Inconvenience of the Legal Process The public is acutely aware of the lengthy nature of the legal process. it is necessary for the parties to have a full understanding of the facts. you must figure out what will alleviate this concern. such as “What caused you to realize that something was happening?” If the person continues to object then you have to implement the second step. which often occurs in high crime areas. The witness also needs to know that in order for a case to get settled. By the time you finish the 32 . allowing you to steer the conversation into the interview subject matter. There are two approaches that work well in this situation. With this approach. It would be hard to imagine them turning their backs on law abiding citizens just to protect an officer who may have messed up. and that being interviewed often is a witness’s only participation in a case. some law abiding citizens fear the loss of police protection if they cooperate with the plaintiff. but I think most of the officers working take their responsibility to protect and serve very seriously. and using that reason to downplay the likelihood of further involvement by the witness. you are recognizing the problems within the legal process. Even if the witness responds negatively to the statement. For example in a civil rights violations case.” You will notice that this response is very general and not something stated as absolute fact since only the officers working the area know if that is truly the case.something open-ended. “I see what you mean. One approach would be to address this concern by saying. a general observation that makes sense to you will most likely make sense to the witness as well. The only way to uncover this belief is to ask the witness about his specific fear. giving the witness a legitimate reason for your needing the information. the witness will have begun talking about something. some witnesses object to being interviewed for fear of being drawn into a time consuming legal process. As a result. However. To overcome the witness’s fear. The only method for getting the facts is to speak to the witnesses.
immediately ask him who told him not to talk. If the witness says no. However. or it may have been the wrongdoer himself. a person might object to being interviewed because he was told not to speak with anyone about the incident. Create a picture that shows that the interview is the easy way out in terms of the legal process. Again. A second approach that can also be successful is to play up the drawn out nature of the process and create a picture of what it is like to get subpoenaed for a deposition or as a witness at trial. you will be in a position to overcome the objection and to move forward with the interview. Perhaps it was the witness’s boss who directed him not to talk. ask for the lawyer’s name and telephone number and end your contact. If the witness is reluctant to identify who told him not to talk. 33 . explain that no one but an attorney has the right to advise him on such matters. When the witness raises this objection. ask for the name of the person who so directed him. The witness might have made this claim to avoid being interviewed. the admonishment not to talk comes from a human relations person or supervisor with the company. Typically. only an attorney representing a person can advise that person whether or not to speak about an incident. Such actions might have whistleblower implications. This most often occurs when trying to interview a coworker of a client about a workplace incident.interview and have built rapport with the witness. Outside Interference On occasion. Being asked rapid-fire questions by a hostile attorney in front of other people is much more uncomfortable than sitting in one’s living room answering questions in a nice informal manner. you will still be able to leave the door open for further contact if needed. Once the witness identifies who instructed him not to talk. ask him if it was his lawyer. If the witness says yes. It may turn out that no one actually told the witness not to talk.
your biggest challenge is to separate what each witness personally knows from what he has heard another person say. Having a second person present occurs most often with husbands and wives and parents and children. To assess what each person knows about the incident. the other person also possesses information about the subject of the interview. thereby making it easier to find out specifically what each person knows about the subject.Interview Problems We have already dealt with overcoming objections to an interview. After one person answers a question. you will have to interview a person while a family member or friend is present. there are three other problems that may arise during an interview that need to be addressed at some point during an investigation. write the initials of the witness next to his specific statement. separating the witnesses can minimize the influence of one witness over another. As the questions get answered. the most common problem that arises. You will need to learn how to conduct an interview when there is more than one person present. while on other occasions. Conducting Interviews While Other People Are Present Often. Further. start with a general question directed at both witnesses. This is critical since the witness may potentially have to testify under oath about his specific knowledge of the incident. ask the other person if there is anything else to add to that statement. Listen carefully as each person responds to your questions and as you write your notes. Most investigative manuals recommend that the investigator conduct these interviews separately. you will learn which of the individuals 34 . On some occasions. it is often not practical to conduct separate interviews. the family member or friend is there to support the witness. Interviewing Two or More Individuals at the Same Time When conducting an interview with more than one person present. However. While this is a good general rule of thumb.
the representative may be there to try to interfere with your ability to conduct the interview in an appropriate manner. Interviews When Attorneys or Union Representatives are Present Occasionally. cease the interview at that point. The most workable approach is for the representative to serve as a witness to the interview. You may find that you can fill in more of the fact pattern when this occurs than if you had separated the witnesses and interviewed them individually. Sometimes the witness being interviewed is worried about the interview process and simply wants guidance during the interview. This helps reduce the chance of conflicting information leading to an argument. you will be able to focus your attention on that person without being dismissive of the other individual. Sometimes one person will be more aware of a given event. Often. He should be prohibited from providing any answers to the witness or from interfering with the flow of the interview. By determining which individual possesses the more specific information.has a better recollection of the fact pattern. you may have to interview a person while a union representative or attorney is present. For example. and conveys to both witnesses that they are working together as a team. as the statement of one person triggers a remembrance of a previously forgotten fact. On other occasions. After each question. ask the other person if there was anything else to add to what the first witness said. You will need to set ground rules with the witness and representative at the outset of the interview. you might interview friends of a domestic violence victim who have each taken her to the hospital on separate occasions. If the witness needs to consult with the other party. they feed off of each other. There is a benefit to interviewing two or more family members at the same time. This situation most often occurs during a third-party fact finding investigation in an employment setting. If the 35 . If the other person interferes during the interview. Most professionals will respect these conditions. and remind him of the ground rules. while the other person will be more familiar with another event. allow them to consult during a break in the interview and have the opportunity thereafter to clarify any information the witness previously provided.
This step will ensure that a statement obtained from a minor can be used in the same manner as a statement obtained from an adult. Interviewing a Minor Another problem that you may encounter involves interviewing a minor. This is a good approach for determining if the teenager feels the subject matter is too sensitive to discuss in front of his parents. work and knowingly consent to things where younger minors cannot give consent. In general you should obtain the parent or guardian’s permission and allow them to be present during the interview with the minor. he may be reluctant to discuss the entire matter. Once the offer is made to clear the interview with his parents. 36 . Parents generally permit their children to be interviewed and to speak freely during the interview. and have the parent or guardian sign on behalf of the minor as well. offer to ask his parents for permission. a teenager may consent to being interviewed in the hopes that his parents won’t learn about his role in an incident. If a sixteen or seventeen year old is hesitant to talk with you. it may be more effective to treat them as adults able to make decisions for themselves. there are times when it is appropriate to interview a sixteen or seventeen year old without asking consent of the parent. The law tends to view sixteen and seventeen year olds differently from younger minors. As an example. If you have any questions or concerns about parental consent issues. However. discontinue the interview and document the problems that led to the termination of the interview. They are allowed to drive. Most interviews conducted in the presence of an advisor will move along in a similar manner to those conducted without an additional party present. Finally. have his parent or guardian look over the statement with him. Therefore. if the teenager was a passenger driven by a friend who had smoked Marijuana just before the car accident. This may be the case if the interview involves a subject that might cause the teenager problems with his parents and the teenager requests that his parents not be present. make sure to check with the attorney who retained you before you make contact with the witness. if you need to obtain a handwritten signed statement from a minor.other party continues to interfere after being warned about his conduct.
The tried and true approach to exposing an inconsistency is to ask the same question a few times in different ways. They may lie to protect themselves or others. the easier it is for you to uncover a lie. Instead. 37 . Interview. a witness who was in the car being driven by the opposing driver in an accident involving your client told the police that your client drove through a red light and caused the accident. For example. By doing this. he will be less able to lie consistently when questioned about the same information in a less obvious manner. only that his statement is not credible when balanced against other available information. the dishonest witness will be waiting for you to ask about the specific fact issue about which he is prepared to lie. Most lies are exposed through pursuing an inconsistency in a witness’s statement. interviewing a dishonest witness can be extremely frustrating since the witness’s untruthfulness interferes with your ability to get to the truth of the matter in question. In general. For the purposes of settlement negotiations and trial you do not have to prove that a witness is lying. or may lie to make themselves look better. However. However. But. to Get the Lie on the Record It is not the investigator’s job to cross-examine or confront the witness about a lie. some people do lie. for whatever reason the witness chooses to lie. two independent witnesses told the police that your client had the green light and that the car the witness was riding in ran the red light. you are able to diminish the usefulness of any information provided by the dishonest witness. Unfortunately.The Dishonest Witness One final problem that you may encounter during an interview is having to deal with the dishonest witness. Exposing the Inconsistency through Repetition The more informed about the subject matter of the interview you are. Don’t Interrogate. it is your job to document the false statements and to try to ascertain what portion of the witness’s statement is false.
ask the witness where the car he was traveling in was at the time the light turned red and what he was doing when the light turned red such as singing. you can ask follow-up questions to flesh out any information that contradicted the previous statement as well as downplay the earlier statement made since that statement was intentionally slanted. Finally. People often are uncomfortable with silence. In order to illuminate the inconsistencies in the witness’s statement. Exposing the Inconsistency through Silence Another approach to exposing an inconsistency is to leave long periods of silence between the answer given by the witness and the next question that you ask. Exposing the Inconsistency through Contradiction On occasion. a deposition or at trial. Perhaps they worry that you are judging them during the silence. One approach is to tell the witness “It’s interesting that you should say that. talking or eating. After a few minutes of questions about other aspects of the accident. it is also effective to tell the witness that other people have contradicted what the witness has stated. The first time you ask the witness about the subject matter. Often the follow-up information contradicts his previous comments. He may try to fill the silence with more information to distract you and keep you from evaluating him. I had heard that it happened a little bit differently” and wait for a 38 .Therefore. ask the witness “At one point did you observe the light turn red?” If you get information that indicates an inconsistency or that he did not have the ability to observe what he claimed to have observed. you already suspect that the witness is lying to help out his friend. you will have information that can be used to discredit the witness during settlement discussions. before starting the interview. you would ask him in different ways about his actions just prior to the accident and his vantage point during the accident. Without cross-examining the witness. you should ask at what point the witness knew there was going to be an accident. a few minutes later. For a dishonest witness. the silence may cause him to fear that you are aware of his dishonesty.
response. You can provide a specific example of the information that you were told that contradicts the witness. Do not provide the information in an accusatory manner; instead, state the information as a matter of fact without being adversarial. Most people are not good at lying and you will, at the very least, uncover the areas where the witness is being deceptive. Once you have locked in the inconsistencies, you can then use other sources to show that the witness’s version is not credible when contrasted with what other people have stated. Effective Note Taking Previous subjects have covered the process for getting a witness to consent to an interview and the process of conducting an interview. However, no interview is complete without a method for accurately documenting the information provided by the witness. Note Taking vs. Tape-recording During Interviews Within the investigative community there is a split between those who take notes during the interview and those who tape-record interviews. Most people find it uncomfortable talking to a tape recorder. Opening your note pad and taking notes is a much less intimidating way to document what is said. Often, tape transcripts have undistinguishable words and sometimes entire paragraphs that are indecipherable. Further, because you do not have to write notes when using a tape recorder there is a tendency to be less attentive to the witness’s responses. Tape-recorded interview transcripts are often full of gaping holes where follow-up questions that should have been asked were not because the investigator was not listening as carefully as he should have been. In some jurisdictions tape transcripts are discoverable as they are deemed a verbatim transcript that has been affirmed by the witness. When taping an interview you should always ask the witness if he authorizes being tape-recorded at the beginning and end of the interview.
Finally, even in one party consent jurisdictions where it is legal secretly to tape a conversation, it is usually a bad idea to do so during litigation preparation. Unlike the government, which spends thousands of dollars on recording equipment, your typical microcassette tape recorder does not do a good job of capturing what is said when kept in a pocket or purse. Room noise and distance from the witness negatively impact what is heard on the tape. Further, concealing the tape recorder causes you to worry about getting caught by the witness if the tape clicks to a stop. If you are focused upon the tape recorder you are not focused on asking the right questions and listening carefully to the answers. Thus, there are some very strong reasons to favor handwritten notes over taperecorded transcripts. Taking proper notes is a learned skill, in the next section you will learn the fundamentals of good note taking. The Fundamentals of Good Note Taking Taking good notes during an interview encompasses three skills. Foremost among those skills is the ability to document what the witness says in his own words. Next, you need to learn to control the pace of the interview to ensure that you have enough time to take adequate notes. Finally, you need to learn to use the margins of your note pad to help organize your notes by subject matter, thus making it easier to prepare handwritten signed statements and interview summaries. Documenting the Witness’s Own Words Proper note taking requires developing the ability to write down what the witness tells you in his own words and manner of speech. There are several important reasons for needing to capture the witness’s words as accurately as possible. First, you never want to misinterpret what you have been told. Next, if you need to prepare a handwritten signed statement, it must reflect what the witness has said in his own words and manner of speech. Finally, you may be called to testify as a rebuttal witness at trial should the witness later change his statement.
As the witness begins to answer your question, write down what the witness said using his words. For example, if the witness says “I was standing on the corner when I heard the sound of tires screeching, and I looked up.” That is how it should appear in your notes. It is alright to leave out certain minor words such as “when” and “the”, but your notes should reflect as closely as possible what you were told. Do not paraphrase what you think the person is saying as you write your notes. And do not distill what is being told to you into a series of bullet points or one liners. The time for summaries will come later when you prepare a report on the interview. To assist with reading your notes later, use double spacing since you will be writing quickly and not as neatly as you normally do. If you are trained in shorthand or speedwriting, which uses a lot of abbreviations, you will be a step ahead of those who do not have that kind of experience. Over time, and through conducting a variety of interviews, you will adopt your own set of abbreviations and create your own version of speedwriting. However, to make it easier to capture the witness’s words, you can use some tricks to alter the pace of the interview, allowing you the time you need to take thorough notes. Controlling the Pace of the Interview to Ensure Adequate Time for Note-Taking During important parts of the interview, slowing down the witness’s narrative helps you to write down word for word, what the witness told you. An effective technique is to ask the witness, “Can I back you up for a second?” and ask for clarification or repeat what the witness has told you. While doing that, continue writing down what the witness said. If you need to remain silent to ensure that the witness completes his thoughts on the subject, make a notation in the margin to come back to that subject when you can. Once the witness finishes, you can tell the witness, “Let me make sure I have this right” and repeat what you were able to document. Most witnesses will point out anything that you have missed. Since you had double-spaced, you can use the empty line above or below to insert anything that you previously missed. If you are just learning how to conduct an interview, you can practice your note taking and interviewing skills by conducting interviews with a family member or friend.
and read through your notes immediately following the interview. It is also a good idea to take a few minutes in a quiet area. such as your car.Ask the person for a general outline of an incident that he or she is familiar with and then interview the person about it. For example you can use the abbreviation “1st not. which can happen when an investigator attempts to get a statement or declaration signed at a later time. This practice interview is a good method to improve your note taking since you are free from the typical pressures that come with conducting an interview during an actual case. 42 . In the next section we will cover how to prepare a handwritten signed statement. Write down any additional subject notations in the margins and draw a connecting line in the margin to the corresponding subject matter to make sure that you have covered all of the information when preparing an interview summary or signed statement. Writing a reminder in the margin makes it easier to organize the information in preparation for preparing a statement or an interview summary. After you have completed your interview. It is prepared in the witness’s presence to reduce the likelihood that the witness will get cold feet and refuse to sign the statement. there will be times that you will want to prepare a handwritten signed statement for the witness to read and sign before you leave.” to indicate that the question and answer related to the first thing that the witness noticed about the incident. The Handwritten Signed Statement A handwritten signed statement is prepared by the investigator at the end of the interview. Using the Margins to Organize Your Notes As you ask a question about each new subject during an interview. Fill in any missing information that did not get written down during the interview. make a brief notation in the left-hand margin of the page that identifies the nature of your question.
so that there is no dispute as to what he said. because a long period of time can elapse between the time you have interviewed someone and the time the information provided may be used. Further. As an illustration. you can still show that the 43 . so that he can look at it to make sure that it reflects what he said. It is helpful in getting the witness to commit to what he told you during the interview.Purposes of the Signed Statement The handwritten statement serves several different purposes. a handwritten signed statement can serve as an excellent negotiation tool during settlement discussions. it is a good idea to move to a quiet area and let the witness return to his regular routine. it is in everybody’s best interest to get the matter resolved quickly. A handwritten signed statement allows you to downplay unfavorable information while focusing on favorable information. thus. If the witness then refuses to sign the statement. providing opposing counsel or an adjuster with a statement from a favorable witness can help to convince the defendant or insurance company that liability is clear. Investigators often make an intentional mistake in the statement so that the witness will have to make a correction and initial the correction. tell the witness to read through the statement and to make any changes he feels necessary directly onto the statement. If you are at the witness’s home or place of work. ask him to sign and date the bottom of each page and to initial any changes that he has made. Thus. Once the witness has read through the corrected statement. the handwritten signed statement can be used to refresh the witness’s memory or to impeach him if his story later changes. something a tape-recorded interview does not allow you to do. especially for the inexperienced investigator. Transition from the Interview to the Signed Statement The transition from conducting the interview into obtaining the handwritten signed statement can be a little bit tricky. One of the easiest methods is to tell the witness that you would like neatly to write up what the witness told you. A handwritten signed statement allows the witness to review and affirm his story in his own words. Once you have written the statement. in plaintiff personal injury matters.
In that way. It has three segments. people are becoming more guarded about their privacy. go right into a first person narrative describing what the person observed or how the person became aware of the specific information you want to document. Professional investigators use a three-part carbon paper specifically designed for this purpose. if you were documenting a car accident. By breaking the acts of reading. making changes and signing into different components.witness did at least read and correct the statement after you prepared it. a heading and identification portion. Code Section 1746. social security number. you might 44 . a statement written on legal pad will also work fine. but not disclosed to people who do not need the personal information. If the statement will possibly be used for summary judgment purposes in federal litigation under 28 U. you help to minimize the likelihood that the witness will refuse to sign the statement. a body and a closing declaration done under penalty of perjury. it is available if needed. but include it in a separate report. A handwritten signed statement is prepared as one long paragraph with no indents or breaks. and I live at (list the address) and I can best be reached at (list the telephone number)”. However. ____________. Statement Format Requirements A handwritten signed statement can be prepared on any type of paper. you can start with “My name is _____________. There are two openings that can work well. After the header and contact portion. However. you may want to leave the previous information out of the statement. Preparing the Signed Statement In the heading portion begin by identifying the witness.S. The statement is prepared in a first person format as told by the witness in his own words. Some investigators will also add qualifying information. driver’s license number and the name of a person who will always know how to contact the witness in case the witness moves. As a result. For example. including date of birth. you can start with “I. state as follows:” or if the statement is for an auto accident.
it is one of the most critical parts of any investigation. While preparing reports for a civil or criminal litigation may appear tedious to some investigators. certify or verify) under penalty of perjury that the foregoing is true and correct.write something like. Interview summaries are also used when a handwritten statement is obtained to include information that was left out of a signed statement. The Chronological Summary vs. close out the statement with the following: “I (declare. After the body of the statement is complete. For example.” A sample handwritten signed statement is included in the Appendix for you to use as a reference in preparing statements. 45 . “On March 18. The most common version is a chronological summary of the information learned through the interview. The Topic Based Summary There are different formats that can be used to document an interview. I looked up and saw a car slam into another car that had stopped for a red light.” Continue in the first person narrative until the story is told. A sample chronological summary is enclosed in the Appendix of the book. to summarize an interview regarding a car accident. A report creates a permanent record of the information learned. you would begin the summary at the point where the witness first became aware that an accident was going to occur and you would end the summary with the last observations made by the witness before leaving the accident scene. (state). state. 200__ in (city). 2001 I was standing at the corner of First Street and Main Street when I heard the sounds of tires screeching. Interview Summaries Not all interviews will be memorialized in a statement. It is the primary communication tool used to convey information to various members of the litigation team. Executed on this __ day of _______. The vast majority of interviews will usually be documented in an interview summary.
Following the background section. Summary Structure Each interview summary should identify the witness in a heading at the top of the page. Identify and underline each topic and give a summary of the information provided by the witness that pertains to that topic. Next. The first paragraph should state the following: ● Who was interviewed ● Who conducted the interview ● When the interview was done ● The location of the interview if done personally. lead into the most important topic that you covered during the interview. For example. Most investigators title the interview as follows: INTERVIEW WITH (witness’s name). The key to the summary is to 46 . you can use quotes when the actual quote is helpful to convey the person’s information. you would want to put into the background section the relationship of the passenger to the driver of vehicle. although. if you interviewed a passenger from a car that had been in an accident. It does not have to be a verbatim summary or in the person’s own words. Such information might include a person’s occupation. but it is a better approach to convey specific information. and what. if any. a person reading the report can scan the report for the section covering the specific topic he is interested in. Therefore. A sample topic-based summary is enclosed in the Appendix of the book. if by telephone include the person’s telephone number. In that way. how long he or she has worked at the job. you can follow the first paragraph with some information learned during the rapport building phase of the interview. to communicate to the report reader some background information as to who the witness is. it makes sense to break your summary into those topics. relationship the person has to any of the individuals involved in the incident.Another approach is to prepare a topic-based interview summary. This is a more difficult and time-consuming approach for summarizing an interview. Each interview that you conduct covers specific topics. It is also visually easier to communicate information to individuals when the information is broken down into smaller easy to read segments.
for example. After you have completed the summary. that he spent three years in state prison for fraud. You will be amazed at just how much you can learn through these sources. while you are summarizing what was said. The purpose of the summary is to document what the witness had to say. you have the option of adding a witness evaluation to the summary. However. You can also convey that a witness was less than forthcoming in this section of the summary. The next chapter will serve as a primer on public record research. do not interject your opinion. or if there is something important that the witness told you about himself. 47 .document the nature of the witness’s knowledge as conveyed to you during the interview. The next most important tool in the investigative arsenal is to learn how to obtain public record documents and how to use those documents. This can be helpful if witness credibility is an important issue in the litigation. you should document that information in this section. If there is a good likelihood that a case will go to trial. even if you think the person lied to you.
48 . For litigation investigations. the book covers how to search for the information and how to assess the information once you have found it. In addition. One of the hallmarks of a free society is the free flow of information possessed by the government to its citizens. professional licenses and governmental investigations. OVERVIEW ● Types of records available ● Locating and researching specific records ● Open records and FOIA requests Types of Public Records There is a vast amount of public record information covering areas as diverse as court records. from the smallest municipality to the federal government maintain information that is public record. All levels of government. For the litigation investigator. public records can also be used to prepare background investigations and to locate witnesses.CHAPTER TWO LOCATING AND REVIEWING PUBLIC RECORD DOCUMENTS America is a free society. review and copy public records is governed by state statute and by the Freedom of Information Act at the federal level. This section of the book covers some of the different types of public records that are available and where those records are maintained. public records provide a wealth of information that often is admissible at trial. In addition to providing specific factual information. The ability to locate.
Metropolitan Court or Town Court. there is usually a lower level court where civil suits under a certain dollar amount are filed and where misdemeanor criminal cases are filed. identify previously unknown witnesses and to develop information to impeach testimony. The upper level courts usually have jurisdiction over larger dollar amount civil filings. probate filings and domestic relations or family law filings. In some jurisdictions the lower level court is identified as the Municipal Court. The filings that accompany a court action often contain a wealth of information. Smaller counties may band together and form a unified court covering a larger area. Magistrate Court. felony criminal filings. be it civil. Court Records At onetime or another. Most often the state courts houses are situated in the county seat for each county in a state.the most useful of all public records is the court filing. The same level court may have a different designation depending upon the region of the country where it is located. Jurisdictions and Levels The vast majority of court records research that will be conducted as part of a litigation investigation take place at the county courthouse in the county where the parties to the action reside. levels and types of courts that you may need to visit in order to locate information. In general. traffic. a significant portion of our population becomes involved in a court case. criminal. 49 . bankruptcy or probate. Court filings can be used to locate known witnesses. Court filings can be used to prepare background investigations to assess a party’s reputation for honesty and veracity or to prove up prior bad acts. State Courts Most courts in this country are operated at the state level. it is necessary to have an understanding of the different jurisdictions. To understand where to find the appropriate filings.
This increase has been attributed to criminal filings in the so-called drug war and to employment-related discrimination and harassment lawsuits. As a result. Beginning in the late 1980’s and early 1990’s there was a large increase in cases filed in federal courts. federal courts are usually found in a state’s largest metropolitan areas and are designed to handle a large geographic area. In addition to county level filings there are other court locations where you may need to search for public records. As a result. Federal Courts Federal courts maintain civil and criminal filings that pertain to alleged violations of federal statutes rather than state law statutes. Between local and federal courts. cover a relatively small geographic area. federal courts cover a larger geographic location within a state. The next section covers how to conduct a search for court cases and how to review the information contained within a court file and what applications the information may have for the litigation process. the next most useful will be at the Federal District Courthouse. Besides the county courthouse. 50 . those lawsuits brought against government employees for alleged violations of rights enumerated in the Bill of Rights and bankruptcy petitions together make up the vast majority of filings found in federal court. Along with these types of filings. Santa Fe and Las Cruces. most any type of civil dispute or criminal matter falls within the jurisdiction of some type of court. these courts often are designated as Superior. For example. District or Circuit Court. there is a fairly good chance that you will locate a filing that pertains to a person or business that is a party to the litigation you are investigating. While county courthouses. there are federal courts in Albuquerque. civil rights lawsuits.Typically. For example. federal courts may be designated for the eastern district or the southern district of a specific state. in New Mexico.
When available. for example. The federal courts still use microfiche for searching older court filings. Searching is an easy process. While other indexes. civil and criminal filings on one card. those cases found on microfiche will be closed. middle initial or last known addresses to use to match a filing to your specific subject. it will help to have the subject’s date of birth. you will need to learn how to use the three different search tools since you may need to conduct a search that predates the courts computer system. The cards may also be organized as to the type of filing. Microfiche was quick and easy to use and allowed you to catch misspellings and name variations. To properly conduct a search. have no qualifying information. 51 . microfiche was a popular tool for the courts to use to keep track of case filings. Some of the case indexes such as criminal and traffic indexes include a date of birth to assist in matching cases to the correct subject. which a computer often misses. the case number and whether or not the case is still pending. Generally speaking. For example one card may cover from the period from 1978 through 1988 and may list cases for all people with the last names Duke through Gray. the date the case was originally filed with the court. which are the tools used to identify case filings that pertain to a specific party. Microfiche cards are arranged alphabetically and cover a specific number of years. There you may find a computer. If no name appears than there was no case filed. thus. bankruptcy filings on another card. microfiche or old fashioned case index books. first name. social security number. since most courts have switched to a computer system for their more recent filings. A typical microfiche card will contain a person’s last name. requiring you to review any files that you find in order to determine if they pertain to your actual subject.Searching a Court Index Most courts have a public information counter located at the Court Clerk’s Office. Microfiche Before the computerization of the courts. simply locate the card where the last name would appear and search for the name.
With a computer. It is better to find files that don’t pertain to your subject than to miss files that match your subject. Many court search systems also have information areas where you can enter a date of birth. social security number or middle initial. Some computer systems. which can help if you are unsure as to the correct spelling of a subject’s name. Computers offer the benefit of speed and of being able to provide additional information about a filing that because of space limitations were not listed on a microfiche card. like the federal court system are case-sensitive meaning that you must capitalize the first letter of the first and last name. in addition to the case index. more advanced systems may contain images of the actual documents that were scanned into the computer by the clerks at the court. it is better to enter just a first and last name. 52 . which can be helpful when conducting a background investigation. However. While other systems like the state court system in New Mexico. Often computers miss filings entered without that qualifying information. A last name only search may also identify filings for a subject’s family members or ex-spouses. you may also search by the last name only or a last name and first initial. which may cause the computer to indicate that there are no filings for a specific person. many systems allow a public access user to review the case’s docket of all of the documents filed in that case. it is better to err on the side of caution.Computer Searches Most courts systems now use computers for public searches. when there actually were pertinent filings. You will end up having to review each file found that appears to match your subject and as a result. Make sure to check your local court’s system requirements before beginning your search to prevent a wrong result do to a search error. For example. Further. Computer searches typically have a search box or search line. do not require that you capitalize any portion of the name. unless the person’s name is really common. where you type in the last name of the subject followed by a space or a comma and then the first name of your subject.
the case number. The index books typically are organized by the type of case filing such as criminal. the case number. These books may have all cases filed during that period of time organized separately year by year or be lumped together without a year by year designation. Criminal index books will usually identify the defendant. personal injury or breach of contract. The index books for domestic relations will identify the petitioner and respondent. 53 . Index books are usually structured alphabetically based upon last names. plaintiff and defendant. the filing date of the lawsuit and a brief description of the type of lawsuit. These books were used prior to computer systems and required the court clerks to manually enter the names and case numbers either by hand or by typewriter. Some civil case index books are organized by name only while other index books separate listings by plaintiff and defendant. Types of Filings There are a wide variety of types of cases that can be filed. Index books are the most labor-intensive approach to searching a name for cases. civil or domestic relations. Our country experienced a massive increase in the number of criminal cases filed beginning in the late 1980’s that has continued up through the current times. restraining orders. Each book covers a specific period of time. the filing date of the criminal complaint and the nature of the criminal charges. The date of birth is also sometimes identified in criminal case index books.Index Books In many jurisdictions. Index books usually list the parties to the action. while in other courts these records are maintained in a separate index book. Domestic relations filings. Often the most interesting and most useful filings are the different types of criminal cases. the case number. the date of the filing and brief description of the nature of the proceedings. i.e. like divorces. for example 1971 through 1978. searching for files that are more than a few years old may require that you search for cases in index books. paternity suits and domestic violence pleadings in some jurisdictions are listed in the civil index.
Criminal Filings Criminal laws are usually divided into felony and misdemeanor depending upon the severity of the crime and the level of incarceration time. except for DWI’s. such as the subject having lived in other counties. most courts maintain those files. and the relative lack of severity of misdemeanor type crimes. or there being different adjoining counties where a subject may have been active. Misdemeanor filings involve violations that usually carry a maximum sentence of less than one year. Depending upon the purpose of your search and the age of the subject. you will have to expand your search to incorporate those counties. Because of the large volume of filings. In most jurisdictions. the cases filed against individuals are organized in that fashion as well. it is best to start your search by checking the upper level criminal courts in the county where the subject lives. for a short period of time. Felony filings are maintained for a much longer period of time. the two most common charges filed are for driving while intoxicated and drug possession. Therefore. and it is not uncommon to be able to locate and review felony filings that are greater than twenty years old. The vast majority of criminal cases filed are for misdemeanor violations of the law. you may need to 54 . which is usually served in the county jail. Under certain circumstances. As a result. Misdemeanor v. Felony Filings Felony filings involve more serious offenses. usually from three to ten years. DWI filings are usually maintained for at least ten years as each successive offense enhances the severity of the punishment. typically those charges that can result in a state or federal prison sentence of greater than one year. Reviewing a Criminal Filing A felony conviction that has occurred within the past ten years will usually be admitted into court for the purposes of impeaching the testimony of that individual.
where both sides present evidence. the file will be transferred to upper level court. Indictment v. Criminal Complaint In some states and in federal court most charges are initially brought against a defendant following a grand jury indictment as opposed to a preliminary hearing. meaning. However. Once a defendant is “held to answer” at the preliminary hearing. the file will contain a copy of the indictment or “True Bill”. Documents in a Criminal File There are geographical differences as to the types of information you will find in a criminal filing. the case filing date and the name of a party to the action on the request form. write down the defendant’s name under the party section. the case will first be filed at the lower court level. In part these differences are due to how the charges are originally filed. If the defendant was indicted. If a grand jury indictment is handed down. A grand jury indictment is a process controlled solely by the prosecutor who presents evidence to the grand jury. the case number. you will have to request the file from the court clerk in order to view the documents in the file. the criminal complaint is filed initially with the district court. The indictment will identify the charges against the subject. there are no defense lawyers. Once a case filing for the subject is found. and 55 . a judge found that there was sufficient evidence to show that a crime had occurred and that there was enough information to show that the defendant probably committed that crime. which is somewhat like a mini-trial. Most courts have a file request form or card that you fill out and give to the clerk. To request a criminal filing. You will usually need to provide your name and telephone number. by count number. The following information is a general summary of the types of documents typically found in a criminal filing.search the index books or microfiche for cases filed prior to those entered into the computer. if there was a preliminary hearing.
The allegations must be supported by the facts alleged. For example. the date they were found. 56 . can be police officers. the alleged victim. The indictment will also list the specific criminal statute that the crime violated. However. which you can obtain from the arresting agency. if the defendant was charged with receiving stolen property. Witness Lists and Defendant Information Both the complaint and the indictment usually contain a partial list of witnesses that the prosecution plans on calling to testify about the alleged crime. A criminal complaint is filed by a prosecutor based upon information obtained through an investigation. and therefore. The criminal complaint and indictment may also list the police report number. eyewitnesses or the alleged victims themselves. and the circumstances that show a crime occurred. This information is used to ensure that the correct defendant was charged with the alleged offense. the allegation becomes a matter of public record. the indictment would list the items found in the subject’s possession. this information was not presented to a grand jury for assessment. the complaint is in effect an allegation that must eventually be proven to be true at the preliminary hearing and then later at trial. The complaint and the indictment will also usually list the defendant’s qualifying information such as date of birth.will list the basic factual elements. middle name and address. the identity of the rightful owner of the property and when the owner’s property was stolen. including the date of the alleged offense. Therefore. These witnesses. When you review a criminal filing pertaining to the subject of your investigation. Indictments are signed by the foreman of the grand jury to verify that the information contained in the indictment is true. However. write down the names. social security number. occupations and contact information for the listed witnesses as some of these witnesses may be able to provide further information about the subject that is not contained in the pleadings. lab technicians. a complaint will often contain more factual information than a grand jury indictment. once the complaint is filed. You will be able to match this information to your subject to ensure that you too have the correct individual.
Bench Warrants When a person fails to appear at a criminal court hearing. In some criminal cases. as they have to be detailed enough to convince a judge to issue the Warrant. or by cash paid in the full amount of the bond. and a bench warrant is created. and is released from jail without having to post bond. Pre-Trial Release Documents A criminal file will also contain filings pertaining to the type of pre-trial release agreement the defendant has with the court allowing the defendant to be released from custody. Usually. while in other jurisdictions. you will find a pretty complete narrative of the alleged criminal conduct as well as sources of information used to support the allegations.e. A bench warrant is a court order by a judge requiring that a person be brought before the judge.Search Warrant Affidavits In some circumstances. i. Bonds can be secured through property. This type of bond is usually referred to as a “cash only” bond. to appear for all hearings. once the case is adjudicated. One type of release agreement is referred to as “own recognizance” or “personal recognizance”. as they will get the money or property back from the court. this means that the person 57 . These documents can be a terrific source of information. sometimes under penalty of perjury. a failure to appear notice is filed. Therefore. In some jurisdictions the Affidavit for Search Warrant or Affidavit for Arrest Warrant will appear in the court file. the defendant signs a written promise. A bond serves to create a financial incentive for the person to attend all of their court dates. and is reserved for people the court deems to be a flight risk. the criminal file will reference a search warrant or an arrest warrant that was obtained by law enforcement during the course of the investigation. a defendant will have to post a bond in order to secure their release. a cash fee usually paid to a bondsman of ten percent. these documents will be filed separately. With this type of release. which the bondsman keeps. a house.
can be arrested. However. 58 . If no copies are maintained in the file. Sometimes this information is identified as a “minute order” or as an entry on the file folder itself. the bench warrant is usually “held” for a short period of time. In some jurisdictions. to allow the defendant to appear at another date. such as a written demand that the prosecutor turn over their complete file and a demand that the defendant identify any alibi witnesses that are anticipated to be called to claim the defendant was not at the location of the crime at the time it occurred. the court will usually “issue” the bench warrant. the court reporter’s transcripts from the more important hearings are placed into the file. Minute Orders and Transcripts Each hearing that is held during a court case is documented in the file. if the defendant is indigent. Discovery Documents Criminal court filings may possess some standardized filings that pertain to a specific jurisdiction. in which a person admits elements of the crime. There will usually be a corresponding document that is filed. you will be able to purchase a transcript of these hearing through the court reporter. You may find a copy of the transcript for the plea. including requests for continuances and hearings to discuss evidence and compliance with court orders. therefore. this can be much more expensive than purchasing copies of documents contained in the file. The bench warrant is then entered into a computer database so that law enforcement will arrest that person if they encounter them such as during a traffic stop. However. while in other jurisdictions. and a transcript of the sentencing hearing when the judge determines the defendant’s sentence. The courts recognize that there are sometimes circumstances that keep a person from appearing in court. if the defendant fails to appear at the rescheduled date. In some jurisdictions. the file will contain a financial disclosure form. In some jurisdictions you may also find a transcript for the preliminary hearing as well. identifying employment and income information as well as the number of dependents the defendant supports. only the name of the court reporter is listed.
all or a portion of the sentence can be suspended and any time spent in custody before the case was concluded will be credited towards the total sentence. most trial transcripts will not be too long. Depending upon the nature of the offense. Jury Questionnaires and Verdict Forms If a criminal case goes to trial. therefore. the court will file letters sent to the judge by the 59 . notice of dismissal and documents pertaining to sentencing will probably be the final documents that are filed in a criminal case. In some jurisdictions. as the defendant must acknowledge the waiving of certain rights. In most jurisdictions. While high profile cases. There may also be a transcript of the trial. Plea and Disposition Documents The vast majority of criminal cases never reach trial. the typically trial is relatively short lasting from a few hours to a few days. and restitution to incarceration followed by parole. A much smaller number of cases are dismissed by the prosecution for lack of evidence. they will require only a brief glance.These documents are typically filed as a formality aimed at preventing discovery abuses and are not typically too informative. A plea document is very formal. community service. As a result. such as the right to a trial by jury. The defendant usually signs or initials the waiving of each right as well as acknowledging that the plea was done on advice of counsel and with a full understanding of the terms of the agreement. A defendant can be sentenced to a variety of punishments from probation. over 90% of all criminal cases filed are disposed of before trial with most cases resulting in a plea agreement between the defendant and the prosecutor. like the OJ Simpson murder trial can last for weeks or even months. documents pertaining to a plea agreement. the right against self-incrimination and the right to an appeal. The sentencing documents will contain information regarding the nature of the sentence. there may be information filed about the types of questions asked of prospective jurors and also jury verdict forms. Therefore. in which the different jurors provide information as to guilt or innocence.
the party seeking redress for the damages caused by the defendant. where even a death penalty murder filing may still fit in one volume or at most two volumes. The Summons and Complaint A civil lawsuit is begun with the filing of a summons and a complaint. The plaintiff. Common Types of Documents and Information Found in Civil Filings Despite the diverse nature of claims that get filed in civil court. files the complaint. Often these documents provide information useful to the litigation investigator. A summons serves as notice to the defendant that they are being sued and requires a written response to the lawsuit that must be filed with the court within a proscribed number of days. civil filings have a lot more pleadings. It is not unusual to find a three or four volume civil filing. The location where the defendant was served is filled out on the return of service. There you will find a range of filings cover such diverse matters as personal injury claims. A copy of the summons and complaint are served upon the defendants. This information is one 60 . Civil Filings The vast majority of court cases filed in this country are filed as lawsuits in civil court. civil filings typically contain the same types of documents within the file. breach of contract claims and civil rights claims which are just a few of the numerous types of claims that can be found in civil court. Compared to criminal filings. the victim.defendant. and the pertinent information regarding the service of process is filled out on the return of service on the back of the summons and is then filed with the court. and supporters of both that are used to try to effect the sentence handed down. These letters can often provide additional insight into the subject of your investigation.
in layman’s terms. admit or be unable to respond due to a lack of information about an allegation. the answer to the complaint also contains the general defenses to be raised by the defendant.example of how a court filing can help the litigation investigator in locating an address for an individual. Qualified immunity essentially means that if a governmental employee was performing 61 . thus. Contained in the complaint is information identifying the plaintiff and the defendant. In addition. meaning that the plaintiff failed to try to correct the problem before it escalated. The Answer to the Complaint Defendants in a lawsuit respond to the complaint by filing an answer to the complaint with the court. That the plaintiff failed to mitigate his damages. there are some additional defenses beyond what a citizen or business entity can claim. that there is no case against the defendant. In general. The responses contained in this document address the specific allegations in the complaint item by item. the complaint would list the factual elements to show that the discrimination had occurred including the who. to addressing the specific allegations in the complaint. in a lawsuit alleging discrimination against an employer. The complaint would also ask the court for specific remedies and damages (money amounts). a list of the causes of action and an item by item summary of the factual pattern that supports the causes of action. the defendant’s answer will usually either deny. Those defenses include qualified immunity and exemption under a specific state or the federal government’s tort claims act. what. where. Governmental Defenses In lawsuits against governmental entities. while in other jurisdictions no dollar amount is identified. making the plaintiff partially responsible for his own injuries. For example. In some jurisdictions a specific dollar amount is requested. why and how. Typical defenses include that the plaintiff failed to identify factual issues that state a cause of action. when.
Finally. qualified immunity protects governmental agents for discretionary actions. Tort claims acts identify under what circumstances a government agency or its representatives can be sued. which are transcripts of questions asked by attorneys of witnesses who respond under oath. They are interrogatories. In order to be sued under a specific cause of action. you will only find a notice of the deposition in the file. which are written statements of fact that are prepared by one side that require the other side to either admit or deny the veracity of those statements of fact. which are written responses to written questions submitted by one side to the other.his job in a reasonable manner that he is exempt from lawsuits due to injuries that arose from his performing his job. Such transcripts are much more expensive than buying a copy of a deposition through the court clerk’s office. not in their official capacities. arrangements will have to be made with the court reporter to purchase the transcript from his or her office. State actors may be sued under the individual capacities. If the depositions do not appear in the file. depositions are placed in the court file. while in other jurisdictions. requests for admissions. but in general. State lawyers have been known to raise this defense even when the officers or employees are sued in their individual capacity. In some jurisdictions. state governments will often raise the Eleventh Amendment as a defense in lawsuits that raise federal civil rights claims. Interrogatories. the state or federal government must have waived the right to be sued for that stated cause of action. government lawyers frequently claim that a wrongdoing was not waived by that state’s tort claims act. In addition. As a result. Requests for Admissions and Depositions There are three other types of documents that may be filed in a civil lawsuit that are fact based and can provide a wealth of information to the litigation investigator. the Eleventh Amendment of the Constitution has been interpreted to grant immunity to state government agencies from being sued under federal legal claims or in federal court. 62 . Thus. and depositions.
A request for dismissal can be a motion to dismiss the case based upon the plaintiff having no chance to prevail at trial. Attorneys typically list more witnesses than they intend to call. A stipulated request for dismissal. it is permissible for the litigation investigator to contact and independently interview any witness on that list. or having failed to produce information that. Final witness and exhibit lists are typically required to be disclosed to the other side and filed with the court approximately thirty days prior to trial. the terms of a settlement in a civil case. The summary judgment motion and response can provide a wealth of factual information on a subject. Requests for Dismissal and Summary Judgment Motions Civil filings often contain requests for dismissal and motions pertaining to summary judgment. when taken at face value. is usually an indication that the case settled. are often confidential. and may not have even spoken with all of the witnesses listed. Often a preliminary witness and exhibit list is filed much earlier in the process. unless it involves a governmental entity. Summary judgment is a process by which one side requests that the court decide the merits of the case when there are no disputed factual issues. 63 . Unless a witness is designated by the attorney listing him as to be contacted only through that attorney.Witness and Exhibit Lists The rules of civil procedure vary from state to state. Unlike a criminal case. Witness lists typically have contact information for each witness and can be helpful in locating witnesses who are involved in subsequent lawsuits against the same entities. Therefore. where both parties agree to dismiss a case. although most states have adopted at least part of the federal rules of civil procedure. states a cause of action. no monetary amounts may be identified.
Almost all divorce petitions now allege irreconcilable differences as the basis for the divorce. Often the duty to serve these documents falls to a local sheriff. he must file a formal answer with the court. domestic violence restraining orders and paternity issues. the petition will usually identify the type of conduct that warrants the issuing of the order. identifying the amount of money that each parent should contribute to support the children. Once the opposing party is served. accusing the petitioner of causing the problems. the age of the child and that the two adults had sexual contact around the time of the child’s conception. 64 . and information about the respondent’s home and employment addresses. the petition will usually include a child support worksheet. as well as telephone numbers and a physical description.Domestic Relations Files Domestic relations files are those legal filings dealing with divorces. Certain types of domestic relations petitions. A petition seeking a divorce typically contains information regarding the date and location of the marriage. Except for highly contested divorces or child custody disputes. there are usually separate worksheets listing all of the possible contact locations for the person to be served. a description of the relationship between the two parties. The response may contain a counter petition. If there are minor children. Therefore. Common Documents Found in Domestic Relations Filings Domestic relations matters are initiated with the filing of a petition asking the court to issue a ruling or order. The formal answer to the petition is referred to as the response. A paternity suit typically lists the name of the child. such as a restraining order. In a petition seeking a restraining order or order of protection. domestic relations files are fairly small with only a few documents filed in them. must be personally served on the opposing party. the number of minor children living with either party and a basis for seeking the divorce.
Once finalized. Bankruptcy Filings Bankruptcy petitions. These items will include such things as property. which includes a plan to pay creditors a certain percentage over an extended period in full discharge of the debts. pension information. which requests a discharge from all debts lawfully incurred. vehicles. Petitions Individuals typically file either a Chapter 7 petition for relief. one spouse may petition to be exempt from the other spouse’s debt owed to a substance abuse clinic. which enables a business to reorganize its debts while allowing it to 65 . are often several volumes in size. especially those filings pertaining to businesses.Matters that lead to the filing of domestic relations petitions are deeply emotional. bank accounts and brokerage accounts. As a result. However. much more so than a typical civil filing. Common Documents Typically Found In a Bankruptcy Filing Bankruptcy filings. these filings often include a wealth of information about the involved parties. credit card and student loan debts. In a divorce case. the information can also be on a much deeper personal level. Both individuals and businesses can apply for protection of some of their assets through the bankruptcy process. which are found in a federal bankruptcy court. provide a wealth of information about a subject. However. For example. most of the litigation centers on a division of the family assets. or a Chapter 13 petition for relief. there are certain documents that appear in almost every file regardless of the size of the bankruptcy. Businesses typically file either a Chapter 11 petition. the allocation of assets and debts along with any child custody arrangements is typically incorporated into the marital settlement agreement. These designations correspond to the sections of the Bankruptcy Code that govern the types of petitions that may be filed.
the government almost always gets first priority on funds not the property of secured creditors and any remaining funds are distributed proportionately to unsecured creditors. and organizes that information by debts secured with collateral and unsecured debts. it is more common in personal bankruptcies to find that the reason for the 66 . such as a house or car. creditors are assigned an order of payment. You may also find information concerning the petitioner’s current employment in the filing.remain in business. After payment of the expenses of the bankruptcy. However. Notice to Creditors A list of creditors is obtained from the petition. if the business is to be shut down and its assets liquidated to pay off creditors. On some occasions individual petitioners will identify lifestyle information such as gambling or substance abuse problems that led to the petitioner’s financial troubles. The Bankruptcy Court utilizes various methods in order to oversee each bankruptcy and the creditors receive payments in accordance with the provisions of the Bankruptcy Code. Pursuant to the Bankruptcy Code. This document lists all of the petitioner’s assets and debts owed. such as credit cards. The creditors respond by asserting rights to any available funds that are eligible for distribution. Additional Information Contained in the File An individual must provide a current address to the Bankruptcy Court as well as his or her correct social security number. but it can also be filed as a separate document. The Court mails a notice to creditors to those on the list notifying them about the bankruptcy filing. The petition identifies items that will be exempt from creditors. or a Chapter 7 petition. Statement of Assets and Liabilities Typically a statement of assets and liabilities is incorporated into the original petition.
it is necessary for the litigation investigator to know where and how to locate these records. The Different Types of Business Records and Where to Locate Them There are a variety of different business records that are available for inspection and copying by the litigation investigator. Some states require all businesses to register with the state and obtain a state tax identification number. People from all walks of life start and run businesses. our ability to perform these functions is regulated by the different levels of government. start businesses.bankruptcy stemmed from a single catastrophic incident such as losing one’s job or requiring extensive medical treatment where the petitioner or immediate family had no health insurance to cover the incurred expenses. In addition to court filings there is a wealth of other public records available to the litigation investigator for use in case preparation. while other states require that only corporations register with the state. at the state level. in order to take advantage of the information that can be obtained through this source. The nature of these records varies according to the type of business involved and the governmental purpose in creating the record. In those states that do not require state registration for sole proprietorships 67 . Other Public Records Many Americans work in highly skilled occupations and professions. However. These documents are public record. Business Records The American Dream is alive and well. Corporations have a different registration process than do partnerships and sole practitioners. buy homes and drive cars. In one way or another. Many areas of the country require that businesses be licensed or registered both at the local level and. These activities lead to public records that can provide a wealth of information about the person being investigated. if a corporation.
By searching business records. One example of how researching these records can provide helpful information for the litigation investigator would occur during litigation against a proposed development. This document is typically filed with a corporate division of the Secretary of State’s Office. A corporation that was incorporated in its state of operation is referred to as a domestic corporation. Corporate Records A business must file a certificate of incorporation in order to operate as a corporation. Corporate records generally list both the local address and the incorporation address for a foreign corporation. who accepts service of process on behalf of the corporation. while a corporation that was incorporated in a different state from where it is operating is referred to as a foreign corporation. This type of paper trail is the best way to produce admissible evidence that the company responsible on paper for the project is not the actual company behind the project.and partnerships. it may be possible to link seemingly unrelated individuals and entities together. Directors. and those records are maintained at the state level. there may be a requirement to register at the county level. Officers and Registered Agents Corporate records typically list the date of incorporation. which is usually located at the state capital. Many states now operate websites that allow you to search for corporation information by an individual's name or a business entity’s name without having to travel to the state capital to get the records. the directors and officers of the corporation and the registered agent. many counties and cities impose an operating licensing requirement that is separate and distinct from the registration process. In addition. Lastly. most states require licensing for a variety of occupations and professions. 68 . States that do not have a website will often conduct searches over the telephone or following a written request.
Often the stock is of nominal value. in most states the registration is filed at the county level. Fictitious Business Statements Most states require that a business operating under a name that is different from the owner’s name file a fictitious business or assumed name certificate. as businesses are not required to file a fictitious business statement. Partnerships and Sole Proprietorships Partnerships and sole proprietorships often have a registration requirement. These documents also identify the stated purpose of the business. Business registration documents identify the business owners of partnerships and soleproprietorships and provide the physical address of the business operation. In some states they must register at the state level. say 1. which can be useful information when conducting an asset search. corporate records may also list majority shareholders of any stock issued.000 shares with a par value of $ . Fictitious business filings are published in a local newspaper and become official after a certain number of publications. Small closely held corporations typically hold shares within family units. This document identifies the real names and addresses of the individuals operating the business under an assumed name.01 per share. New Mexico is an exception to this requirement.Shareholder Information In some states. These records are maintained at the county clerk’s office in the county where the business is based. These filings often take the form of a fictitious business statement or certificate of assumed name. 69 . However.
Further. In addition to business registrations state and local governments also regulate a wide variety of occupations. License applications usually list the owners of a business. for any licenses that might require a medical or psychiatric health history. It is unlawful to practice certain professions without a license. Some elements within the file. education. in some areas it is fairly common for people to practice without a license. However. the Department of Regulation and Licensing keeps these documents. such as reference letters and unsubstantiated allegations against a license holder. especially if the subject has represented himself as a licensed professional. The government section of your phonebook will list the agency in your state responsible for regulating occupations. When searching for honesty and veracity information. You can often find important information about the subject in the licensing paperwork maintained by the government involved. training. the absence of a required license may.Business Licenses Business licenses are usually issued through the city or municipality where the business operates its main office. have licensing or registration requirements. Some people fail to obtain a business license even though they operate a business that requires them to be licensed. be extremely useful. all or a portion of the licensing file is available for inspection and copying. are typically not considered to be public record. 70 . Occupational Licenses Many professions. such as private investigators. This information can provide excellent impeachment material. These records are usually maintained at the state level. In New Mexico. building contractors. the nature of the business and the location of the business. doctors and engineers. However. in some circumstances. work experience and licenses that were held in other states are deemed public record. the information pertaining to these elements are not public record. Depending upon your state regulations.
particularly if someone else was arrested. arrested or driver. there is a good chance that the local police will have some type of report on your subject. date of birth and social security number for your subject. For example. which you will use to request a copy of the report. Generally. Printout by Address You may also be able to request a printout of incident reports for a specific address. the police report and the court file become public record. The printout will also include the date of occurrence and a description of your subject’s role in the report. three year and five years being the most 71 . witness. but not arrested. The printout will list any incident and accident reports that identify your subject. Incident reports where an individual is suspected of a crime. Depending upon your state’s laws. with one year. all traffic accident reports and reports pertaining to vehicle seizures are public record. are confidential as to the specific suspect. which will require that you have a full name. victim. except those involving confidential sources of information. once a prosecutor charges a person. in New Mexico.e. Each state determines the availability of its law enforcement records and when the records are deemed to be public.Police Reports Police reports obtained through your local law enforcement agency can be a very valuable source of information for the litigation investigator. i. This type of search is most useful for premises liability cases as prior incidents can be used to serve as notice of a problem. However. other aspects of the report may still be public record. you will need to start with a printout search. A printout by address can usually be requested to cover different periods of time. How to Search for Police Reports and Records To search police records you will need to submit a request form to the records unit of the law enforcement department. as are all arrest reports and incident reports. Police reports are referenced by number. In most states.
the printout will give a brief description of the nature of the call. Because of the publicity resulting from identity theft. such as a suspicious person or family fight. Birth. Types of Records Maintained by the County Recorder The majority of records maintained at the County Recorder’s Office pertain to real estate transactions. Marriage records are always public record. which list collateral used to obtain a business loan. are all filed with the County Recorder. you may find birth. date and location of death as well as a family member who is identified as the next of kin. most states. court judgments and Uniform Commercial Code (“UCC”) filings. and releases of mortgages indicating that a mortgage was paid off. In other jurisdictions you will 72 . such as occupation and parent’s names. with New Mexico being an exception. and in some jurisdictions contain a wealth of information. will allow the inspection and copying of death records. Documents including mortgages. Death and Marriage Records In addition. A printout by address will list each call pertaining to that location. depending upon the county where you are searching. Generally. You will also find tax liens recorded by local. The County Recorder’s Office A wide variety of documents are publicly recorded in a central location at the County Recorder’s Office. Death records typically list the cause. However. state and federal agencies. as well as discharge papers from the military. which is also known as the County Clerk’s Office or the County Registrar in some locations. many states have prohibitions against providing birth certificates to individuals that are not listed on the certificate. deeds of conveyance of property from one party to another. death and marriage records.common durations. whether it was a 911 emergency call or a non-emergency call.
to use the last name and first initial only. Marriage records may be a necessity when trying to locate a female subject. UCC filings can also serve as useful sources for asset information. you may need to search microfiche or microfilm indexes to check for older documents. you can often find a link between people through property transactions. The staff at the recorder’s office can show you how to conduct a search if you are unfamiliar with the search mechanism. a quitclaim transaction can represent a method of trying to hide ownership of a property. usually one dollar. A quitclaim deed records a transaction whereby property ownership is transferred for a nominal amount of money.find only the names and addresses of the bride and groom and the signatures of the two witnesses to the signing of the certificate. Searching for Records at the County Recorder’s Office You will be able to search for more recent records pertaining to a person by using a computer at the public counter of the clerk’s office.e. However. One such occurrence might include when property is quitclaimed by a defendant involved in a lawsuit to a family member as a means of trying to protect the property from attachment. However. Land holdings often represent the most sizable portion of a person’s financial holdings. A UCC-1 filing is used to list property that serves as collateral for a secured business loan.. These records can typically be searched by either bride’s or groom’s name. Most marriage records will also list a date of birth which allows you to determine that the record you have located pertains to your subject. Women generally still take the last name of their spouse as their last name. or to use the full name. Often the only place to ascertain the new name is through marriage records. Asset Information The County Recorder’s office is a great place to search for asset information on a person. In addition. In addition. For example. including business associates and relatives. the staff can show you the most effective search approaches. The filings are 73 . There are legitimate reasons for a quitclaim. i. property can be “quitclaimed” from one party to another.
Thus a subpoena can be served on that bank to determine account information. Being able to determine who owns a property serves many useful purposes. rather than a 74 . any items that were listed as collateral become free and clear. For example. Further. a person may have slipped in a poorly lighted and maintained parking lot and been injured.renewed every five years. Further. As a result. These exemptions are generally only allowed for an owner occupied property. Once the loan is paid off. the Assessor’s office has fairly up to date property ownership and valuation information. County Assessor The County Assessor’s office is responsible for ensuring that all property owners receive a yearly tax bill. they can research the owners of that property and study what other types of developments those owners have built in the past. In addition. Exemptions Most jurisdictions have a homeowner’s or head of household exemption. Identifying the owner of the parking lot will help to determine who is responsible for the injured person’s damages. the Assessor’s office can be of help when you need to identify a subject’s neighbors to interview them as part of a background investigation. businesses usually secure loans through banks where they maintain accounts. if members of a neighborhood association are worried about the development of a property near their neighborhood. A name search allows you to identify all of the property owned by a person or business within a specific county. street address (situs) or parcel identification number. Searching Assessor’s Records Records maintained at the Assessor’s office can be searched by owner’s name.
75 . you can research campaign contributions made to a specific political candidate. Open Record Requests In most situations. Individual Agency Records Most government agencies have public records available for viewing and copying. you will need to make a formal written request to the agency that maintains that information. to a certain extent. Those requests are typically referred to as an open records request. There are too many agencies to list. including the autopsy and toxicology reports. think about what types of public records may relate to your case and start searching the indexes of the agencies that control these records. public record. autopsy information is. but as you create your investigation plan. This information helps to identify a residence address when the subject owns multiple properties. These records are usually located at the Secretary of State’s office. A sample open record request letter is included in the Appendix. in order to inspect and copy a public record. Generally public records are required to be available for inspection and copying during regular business hours. and can be useful for linking an elected official’s voting record to the specific interests of a campaign contributor. However.rental property. each state has established its own guidelines as to the amount of time that a government agency has to make the information available to the requestor. For example. Usually you can inspect the file and make copies of some of the documents found in the file. As another example. Sample Public Records Request Letter The sample public records request letter below has worked effectively when submitted to government agencies in different states. You can obtain a copy of your state’s regulations through your state’s Attorney General’s office.
Refusal by A Government Agency to Produce a Public Record Every once in a while you will meet with resistance to your public records request.35 to $1. telephone the agency that you will be requesting information from and ask for the custodian of records for that agency. You should also ask about copy costs. Certification is a stamp or embossed seal that authenticates the records as true copies of the original.00 per page in some jurisdictions. If you believe you are dealing with a new employee or an employee that may not be aware that the documents are public record. politely ask why you are being denied access to the records. Handling a Refusal to Provide Public Records Here are some approaches to take when you are refused access to a public record. Often. Five dollars is the typical search fee for most courts and other agencies throughout the country. When you reach the custodian find out if there is a charge to conduct a search for the records that you are seeking. to check with their supervisor. as document charges can run from $ . ask very nicely to speak with their supervisor. remind the employee that the information is a matter of public record. 76 . a study by the Foundation for Open Government (FOG) and the Albuquerque Journal found widespread violations of New Mexico’s Inspection of Public Records Act by government agencies within the state.Before sending your letter. Check to see if there is an additional charge to certify copies of records. First. If they refuse. which can be critical if the documents are needed for use in a court proceeding. you will have access to the records you seek. In fact. Let the employee know that if they are uncertain as to whether or not the information is public record. once the supervisor becomes involved. However. other violations were blatant attempts by government officials to ignore the law’s requirements. Some of the violations were due to a lack of knowledge about the public record law by clerks who were processing the requests.
like New Mexico. If the agency continues to refuse to provide the information. If the attorney accuses you of making an ex-parte contact. there is a reluctance to deny the media access to a public record since the denial can easily wind up as news. The AG’s office will then notify the other side and attempt to get the documents produced for you to inspect and copy.000 in damages. there are times when the staff will refer you to an attorney for the agency. tell him to put the reason for the refusal in writing so that you may take it to the AG’s office and to the state bar’s ethics committee. Firmly tell the attorney that you are seeking public documents. Sometimes the media will send its reporters after the same information. A District Court judge in New Mexico recently awarded a large amount in damages against a law enforcement agency for its refusal to turn over public records.Dealing with Agency Attorneys However. Admittedly. A three-month delay on four different documents could equal $ 36. Then take the letter to the Attorney General’s office and file a formal complaint. 77 . If the attorney continues to refuse. You can also go to the media and report the stonewalling by the agency. This may happen if you are in litigation with that agency. and that failure to comply with the request will be referred to the Attorney General’s office or other agency responsible for enforcing the act in your state. tell the person so informing you to put the reason for the denial in writing. but if an agency knows that it can stonewall without any repercussion. this is extra work. allow you to file a lawsuit in District Court over the refusal to provide public records. Since records clerks often know reporters. Private Causes of Action Some states. remind the attorney that a public record request directed to the custodian of records is fully independent of the legal process. Many states have a designated officer who will intercede on your behalf if there is a denial of a public record. the agency will do so as a matter of practice. In New Mexico. A private action allows the recovery of damages and the costs of bringing the suit. you can be awarded up to one hundred dollars per day per violation.
which is used to obtain records that federal agencies. The agency will review your request. FOIA is for use in obtaining records that involve the agency in question or other individuals. may have concerning the requestor. Those sources will be covered in the next chapter. there are other resources available to the case preparation investigator that can be of assistance in preparing a case for settlement or trial.Federal Agency Information The Federal Government also has an open records act called the Freedom of Information Act (FOIA). with a minimum of six weeks to three months in order to get the documents. When making a FOIA request. For any request to a federal agency. like the FBI. expect the processing time to be very lengthy. 78 . which allows you to submit a written request for information from any federal agency. you must be as specific as possible as to the documents requested. In addition to public record searches. The operators can often help to identify the correct agency if you are unsure as to whom to direct your FOIA request. and if the information is public record. It should not be confused with the Privacy Act. otherwise your request will be rejected. To locate a specific federal agency you can call the Federal Information Center (800) 688-9889 and ask for the telephone number and mailing address for that agency. you will be able to get a copy of that information.
OTHER SOURCES OF INFORMATION
There are two other sources of information when used in conjunction with interviews and public records research will help you to round out your investigations: newspaper archives and the Internet. Newspaper archives can be searched to locate related stories to the subject that you are investigating, such as similar lawsuits against a corporate defendant in another state. The archives can also be used to identify additional people knowledgeable about the individuals involved in the litigation. The Internet has begun to mature as a source for the case preparation investigator. It can provide a wealth of general information on a subject or matter being litigated, serve as a gateway to public records and it can be used to help locate a person or business entity.
OVERVIEW ● Newspaper archives ● The Internet ● Fee for service databases
Newspaper Archives Newspaper archives are still one of the best sources for the case preparation investigator to develop basic background information on a specific topic or person. Newspaper archives, also known as “morgues” are the storage location for old newspaper editions. There you can find copies of articles, obituaries and advertisements.
Searching for Articles Your local newspaper will have a library where you can search either a database or index book by subject matter or an individual's name. Some newspaper databases search by using the last name, while others use the full name. A few can even search by the first name. Make sure that you ask the librarian for the most effective approach to conducting your search. One advantage of searching through the index books at the newspaper morgue is the ability to cross-reference the subject of your search in many different ways. Thus, you have a greater chance of locating the information you seek. You can also find newspaper archives on line on the Internet. Many newspapers will allow you to search a name or subject matter for free on line but will only provide the first paragraph of the article for free. To read beyond that you will need to pay a fee. Finally, most large public and college libraries have newspaper indexes and microfilmed newspapers, allowing you to search not just local papers but papers in different regions of the country. This is particularly helpful when researching out of state lawsuits. Obituaries The litigation investigator can often find useful information by searching through obituaries. Obituaries provide information that can be helpful in locating witnesses and for conducting background investigations and asset searches. Reviewing and Copying Articles Once you have located an article in the index, you will need to fill out a request form identifying the date of the article, the section of the paper the article appeared in and the first few words of the title of the article. More recent articles will be found in back issues of the newspaper itself, while older articles will have been recorded onto microfilm. You will be able to read the older articles and often times make copies right from the
microfilm viewer. With more recent articles, it is probably less expensive to purchase the back issue than to make photocopies of the article. The Internet Beginning in the late 1980’s and early 1990’s, computers started playing an increasingly important role in case preparation investigations. It has taken a while to grow into a dependable source, but with the widespread proliferation of services available, especially on the Internet, the case preparation investigator has a valuable tool that the old gumshoe did not have. The Internet has truly changed the way investigators conduct locates and background investigations. With the help of a computer many types of searches that required field work can now be conducted right from the office. By typing a name into a search engine it is possible to locate all types of articles and government records, including court pleadings. Further, there are a wide variety of fee for service databases that, for a fee, allow you to search billions of records by name or social security number. However, the Internet is still a relatively new phenomenon and is far from perfect as an investigation tool. The information found on the Internet can be outdated and many services just do not work that well. Despite these shortcomings, the case preparation investigator can still use this tool to advance the investigation process. Searching for Public Records on the Internet It has taken a while to accomplish but more and more governmental agencies are providing access to public records on the Internet. Some of the sites are set up to allow free searches, while others charge a search fee, with $ 5.00 being the most typical amount. The most commonly available public records are property records, court records and corporation records. In addition, many of the agencies that do not have on line searches still have websites that provide a telephone number, fax number and address to make contacting the custodian of records a more streamlined process.
the causes of action or types of claims. By checking cases on the Internet first before going to the courthouse. This case index can usually be printed directly from the screen.com. The docket typically identifies the opposing parties. such as New Mexicocourts. the investigator can quickly determine which files need to be reviewed once at the courthouse. For example. a civil filing usually will not have any information other than a party to the action’s name. Searching A Court Website Most court websites allow you to search by name or name and date of birth. you will be able to identify the appropriate county court. Often a criminal filing will list the defendant’s date of birth making it easier to narrow down your search. which will be shown as a docket or register of actions for that specific case. On the other hand. you can search with the same approach by entering the name of the county followed by the “+” sign and the word “court”. If you do not know the name of the county you can use a search engine to locate different government entities near a specific city. Once you access the general government pages.Locating a Specific Court Website To locate a website for a court anywhere in the country you can follow one of two approaches. When you type in a subject’s name you will get a list of all cases that match that subject’s name. The index page is used to highlight and pull up any individual cases. If you cannot locate a statewide system. First start with a general search engine like Yahoo! or Google and type in the name of the state followed by a “+” sign followed by the word “court”. 82 . Benefits of Conducting an Internet Search Case preparation investigators use court records as a primary source of information to conduct background investigations on parties and witnesses involved in litigation. and the resolution of a case. By entering this type of search string you will be able to identify any statewide court website. the attorneys representing those parties.
You can type in the state agency with a “+” sign followed by the name of the state where the agency is located. you have to scan through a list of people with the same last name in order to find records that match your subject. type in “Secretary of State + New Mexico”. Sometimes you will have to open each record listed in order to check 83 . Once you have entered the website. Thus. In addition. check the navigation bars or buttons for a records search or information search page. the New Mexico Corporations search allows you to search for corporations under the company name or a director’s name. An exception would be if the subject constantly files accident lawsuits and you suspect him of committing fraud. For example. most state governments have a general website that can be used as a link to a specific government agency’s own website. you can eliminate viewing case files where a party has the same name as the subject if the birth date is different.gov”. Limitations to Government Websites While the Internet can be a great tool for searching government records. In addition. to locate a website for the New Mexico Secretary of State’s Office. which will usually have an address that ends in “. The website takes you to an alphabetical listing of names rather than pulling up the specific name you entered into the search box. By reviewing the docket on the Internet. You will get a list of websites from this search. mistakes can be made during the data entry of a case into the computer. However. since some files list a date of birth. For example. By clicking on the link to a specific agency you will automatically be taken to that website. so if the birth date is close it is still worth reviewing that file. Look for the official website.car accident lawsuits provide very little useful information for doing background research on a subject. Searching for Other Government Websites The process is very similar for locating a specific government website. there can be limitations to the effectiveness of searches that you can conduct on line. you can eliminate the files that will not provide useful information.
at almost a dollar per call. you may locate a telephone number and address for a witness. but get greeted by a disconnect message or find that the telephone number has been reassigned once you call. you can search by last name only and by name and city or name and state as well. These searches are called reverse address and reverse telephone searches. you can also use the Internet to search for a telephone number by address or to get an address from a telephone number. Therefore. Simply search under apartments within a specific city. Fortunately. However.for a specific individual when searching by a director’s name. You can also obtain a telephone number for the manager of a large apartment complex through a yellow page search. This type of search allows you to 84 . the Internet telephone directories are free and allow you to search nationwide simply by name. Internet White and Yellow Page Directories The Internet has revolutionized directory assistance. Now. you have to restrict your use of this service. Further. Reverse Address and Reverse Telephone Searches In addition to directory listings. directory assistance only provided you with two listings per call. The only major limitation to Internet directory assistance is records are not always current and occasionally can be as much as a full year behind the telephone based directory assistance. This is generally most effective with an uncommon name. It used to be you had to know the city a subject resided in order to check directory assistance for a listing. This can become very time consuming if you are searching under a common name like William Johnson. Another such limitation is being able to search an assessor’s website only by property address rather than by property holder’s name. This was fine until directory assistance became expensive. This can be an excellent tool in locating a subject’s prior landlord when conducting a locate search. You can find a telephone number for governmental agencies that do not have a website by using the business yellow pages.
the camera. particularly for locating a person who has moved out of the area. they are best used sparingly or when you have been unsuccessful in locating any other information on your subject. However. Fee for Service Databases The Internet allows access to fee for service database companies. these searches only work for listed telephone numbers. such as public records indexes or address information. Therefore. In the next chapter.locate neighbors and businesses near a specific address. the case preparation investigator can often find the same information by checking public records. 85 . Fee for service databases provide different types of searches. you can obtain a physical address from a telephone number. However. Some companies specifically market to investigators. attorneys and other information professionals. It the past you had to subscribe to a service or contact the local library where the address or telephone listing that you were researching was located to conduct this type of search. we will discuss another important investigative tool. In addition. Fee for service databases can become very expensive to use and are not nearly as accurate as they are portrayed to be. Fee for service databases have a useful place in investigations. while other services market to the general public.
As a tool photographs are relatively inexpensive.CHAPTER FOUR INVESTIGATIVE PHOTOGRAPHY For the case preparation investigator the ability to visually document a location. You will need to photograph the scene of the accident. adjusters and opposing counsel in a way that words cannot. such as a car accident. picture damage to an object. the damage to the vehicles and any injuries sustained as a result of the accident. OVERVIEW ● Photographing a location ● Photographing vehicles ● Photographing buildings ● Photographing injuries ● Photographing evidence ● Organizing the photographs ● Video photography Personal Injury Litigation Photography For the case preparation investigator most of your photography will occur relative to personal injury type matters. or photograph an injury to a person can be critical to succeeding with an investigation. a visual image can have the power to sway jurors. Further. Photography allows you to document and forever preserve a condition exactly as it appeared at a given time. It is better to shoot too 86 .
Most photo developers charge by the number of photographs printed and not by the roll. Make sure that you get at least one set of duplicates at processing time. document any physical evidence such as skid marks. This type of photograph serves to document each participant’s vantage point. Start with photographs depicting the front. Photograph any speed limit signs. broken glass and any car parts left on the roadway. south and west. Often it helps to photograph the same damaged sections from different 87 . rear. if you are taking the photographs soon after the accident. as it is usually cheaper than ordering additional prints at a later time. After you have taken the establishing shots. Finally. You should also document the locations of any streetlights should the accident have occurred at nighttime. which is located either on the edge of the driver’s door or on the top side of the dashboard on the driver’s side where the windshield slopes down to meet the car. These photographs are referred to as establishing shots and identify the specific location of the accident by recognized reference points. Photographing a Specific Location At a car accident scene.many pictures than not enough and possibly miss documenting something important. and any visual obstructions such as trees and branches. The techniques of photographing any location are the same. you will want to photograph the location of the scene as you approach it from all four directions-north. driver’s side and passenger side. It is a good idea to take a close up photograph of the license plate and of the vehicle identification number (“VIN”). pedestrian crossing and bicyclist warnings. take close-up photographs of the damage to the vehicle. You will also want to photograph any traffic controls such as traffic lights or stop signs. Photographing Vehicles You will also do the same thing for photographing the damage to the vehicle. A car accident location will be used for illustrative purposes. east. You will also want to document the approximate view of the location the driver of each vehicle would have had just prior to the accident.
then shoot establishing shots of the interior location. Since photographs are one-dimensional representations. Finally. and finish by trailing away from the injury. Next. Photographing the Exterior and Interior of a Building The process is the same for shooting inside a building. Photographing Injuries When photographing injuries to a person. Make sure to take photographs from all four directions and take photographs that document different vantage points. if the building was the scene of a police officer involved shooting. On a very large injury. Use a high quality color film with a fairly low grain. Unless you are shooting outdoors you will probably need to use a flash to illuminate the injuries. 88 . such as 100 or 200 ASA. Finally photograph any close-up details as needed. First take the establishing shots of the exterior of the building. Make sure that the flash is synchronized to the camera’s distance from the subject of the photograph in order to avoid washing out the injuries.angles to accurately document the damage. shoot a midrange close-up showing the specific area of the body that has been injured. you will need to photograph the positions of each of the participants. Begin where the first indications of the injury occur and progress up to the most apparent or significant aspect of the injury. you will need to shoot photographs from different perspectives to give proper depth. since there is a chance that the photographs will need to be blown at for use as an exhibit. you must ensure that the overall lighting conditions allow for the naked eye to see the injuries. shoot a tight close-up of the specific injury making sure to capture the condition. and the approximate view that they would have had in all directions from where they stood. For example. you may need to shoot a series of close-ups to capture the entire injury. Start with a few overall photographs of the injured party which clearly show the identity of the person you are photographing.
This may best be accomplished by using a four hundred ASA film and foregoing the flash. That information can be placed into the case file in chronological order based upon the date you took the photographs. which will be visible from different perspectives. An old time trick that some investigators use is to take a picture depicting that day’s morning newspaper as your first photograph on the role. Because lighting conditions can alter the appearance of an injury. Pay particular attention to any physical evidence that the police appeared to have missed during their field investigation.Injuries can appear in a variety of colors depending upon their age. you should get in the habit of bracketing the exposures by shooting at different shutter speeds and lens openings. If you have access to the alleged crime scene soon after law enforcement has processed the scene. make sure to photograph the injuries from different angles. take photographs depicting any physical obstructions that could affect a witness or participant’s line of sight. This is particularly important if you can approximate the location of the different parties at the time of the incident. Finally. you will need to document some additional scenes when taking photographs in a criminal defense case. To capture all of the physical manifestations of the injuries. since you have proof that a roll was shot on or after a specific date. Criminal Defense Photography Although photography for litigation matters is essentially the same. By bracketing the exposure you reduce the likelihood of the photographs being too light or too dark to accurately capture the nature of the injury. take detail oriented close-ups of the physical evidence and anything depicting how the police identified that evidence. time and location where the photographs were taken. This trick can be useful to show changes in a location over time. 89 . Logging the Photographs You should always write down the date. Next you will need to adequately capture the lighting as it occurred during the incident.
90 . It is a good idea to sign in again each time you restart the tape. Videotape. This method will make it more difficult for the opposing counsel to attack the validity of the tape. and the location of the filming. Videotape can also be shot of personal injuries. such as “view of accident scene looking east from the westside roadway shoulder”. the time. These pages can be easily filed in a file folder or binder without damaging the photographs. You can paste two 4 x6 photographs horizontally to a page or one 4x6 to a page vertically. At the beginning of each videotape. Use of video in this manner can be helpful for proving damages in a personal injury matter. allows for motion.Organizing the Photos Each investigator has a different approach to organizing the photographs to best convey the information depicted. Videotape Videotaping a scene or location is approached in a fairly similar manner. the photographer should identify himself. such as when a patient is being examined by a doctor. Each time the photographer stops filming he should sign off before stopping. One approach is to paste photographs to a piece of paper using rubber cement or glue sticks. the date. It also allows for the photographs to be handled and displayed without touching the actual pictures. Videotape can also be shot while driving in a car to capture a moment by moment approach to an accident scene. however. This allows the photograph to be taken off and reapplied without needing more glue. This means that the photographer can walk through a scene photographing things in a manner that creates the same view that the participants had at the time of the incident. Mounting the photographs onto paper allows for comments to be written under the photograph.
SECTION TWO CONDUCTING INVESTIGATIONS 91 .
or the locating of missing persons. facts and circumstances. However. such as a homicide defense investigation. These investigation outlines are designed to demonstrate one approach to conducting an investigation. Skip tracing. To help make the process easier to understand some of the investigations are demonstrated through scenarios based upon fictitious characters and fact patterns. you will probably have to locate someone in almost every investigation that you will conduct. The sample investigations range from the very basic.CONDUCTING THE INVESTIGATION Previously we have covered the different tools at the disposal of the litigation investigator. is one of the most common types of investigations that need to be conducted by the case preparation investigator. such as locating a witness. organizing the investigation and conducting the investigation. if you conduct each investigation with a consistent approach. Each sample investigation covers three sections: creating an investigation plan. 92 . No two investigations are exactly the same. In this section of the book you will learn how to conduct certain types of basic investigations. Each case involves different individuals. They are not intended to be an exhaustive study of each type of investigation. to the very complex. you will have a much better chance to succeed. In fact.
Further. For litigation case preparation most locates are of witnesses. either from public records or from individuals regarding the 93 . The approaches detailed here are designed to keep costs down while still being effective.CHAPTER FIVE SKIP TRACING Skip tracing is the term investigators use to describe the process of locating a missing person. OVERVIEW ● Create a subject profile ● Determine the amount of time since subject moved ● Verify that the subject has moved ● Directory assistance ● Public record searches ● Interview neighbors. case preparation investigators must usually work within a very limited budget. judgment debtors and. occasionally your own client. The second phase is the development of information. defendants. friends and landlords ● Internet searches ● Fee for service databases ● Verify the new address The Three Phases of a Locate A successful locate requires the completion of three separate phases. The initial phase is the creation of a profile of the subject of your search.
probable location or whereabouts of the subject. 94 . Skip Tracing Ethics and the Law Attorneys are legally responsible for anyone who performs an investigation on their behalf. while technology has improved the ability to find an address for a missing person. when in doubt about the legality of an approach. new products offered by the telephone industry. Even independent investigators can bind an attorney. It is illegal to run someone’s credit report in order to locate him. computer access to public records. in order to locate a subject. Before getting started it is necessary to cover the ethics of skip tracing for the legal profession. either in person or over the telephone. including a member of law enforcement. Technology: Friend and Foe Technological advancements. It is also illegal to check his credit if you do not have a legitimate business reason for doing so. Following the murder of Rebecca Schaefer. In the late 1980’s or early 1990’s some California investigators were prosecuted for violating the Fair Credit Reporting Act. However. and a heightened focus on privacy concerns. The third phase is the process of verifying that the subject of your search is actually at the address found during the second phase of the locate. that you are a government official. a young actress. play it safe and stay away from “gray area” legal techniques. including the growth and development of the Internet. It is illegal to falsely state or imply. You do not need to break the law to develop the information you are seeking. Therefore. Many types of searches can now be conducted with a computer and modem. laws have been passed eliminating sources of information that were previously available to the general public. and the proliferation of fee for service databases have helped to improve the search process. have made the verification process more difficult to complete. killed by a stalker who purchased her address information from a private investigator. They were convicted and received very heavy sentences.
you may be able to conduct your search without developing additional information. write down everything that you know about your subject. For example. occupation. including full name. An investigation plan allows you to conduct your search in an organized manner. In spite of restrictions enacted in response to Rebecca Schaefer’s murder. Subject Profile On a sheet of paper. using a postal forwarding search in order to serve legal papers. date of birth. It helps to define the most effective approaches and sources of information to utilize during your search. Assessing the Profile Once you have documented what you know about the subject. social security number. phone number. If you have only a name. One investigator’s failure to assess his client’s motivations has forced all investigators to pay the price of having fewer sources of information at our disposal. you will need to assess the information in order to determine your next step. friends and family. Creating an investigation plan to conduct a locate begins with assessing the information that is known about your subject. and the name is uncommon. last known address. as it guides you down the path that you need to follow in order to conduct your search. However. You will be able to fill in any unknown information as you proceed. such as the sample worksheet in the Appendix. the most important step in beginning your locate search is to devise an investigation plan. The importance of the profile cannot be underestimated. you will 95 . Information that distinguishes the subject from other people with the same name is referred to as qualifying information. access to certain sources of information is still allowed provided you can demonstrate a legitimate need for the information. if the subject’s name is more common. Creating an Investigation Plan For the case preparation investigator.Gone are the days of using postal forwarding information and motor vehicle records to locate a witness.
you telephone the number listed for a witness. However. in a case that has continued on for several years. your should try to determine when the person was last seen or heard from. a witness who just quit his job and moved within the last two months will be harder to locate through a database or other conventional sources. Very few people deliberately disappear. These public records typically contain birth dates. Most witnesses have simply moved to another address since the time of the incident. even these subjects can be located in a cost-effective manner. an individual may have a reason for not wanting to be found and. middle initials and sometimes. marriage records or traffic tickets. will be more difficult to locate. hence the majority of witnesses will be easy to locate. only to learn that the telephone number was reassigned a year ago. The last element of the profile that must be assessed is the reason for locating the subject. Not enough time 96 . He may also have an unlisted telephone number and a caller identification service that identifies callers to his home telephone number. Amount of Time since Subject Last Known to be At Specific Address As part of your investigation plan. as this will affect the manner in which you conduct your search. However. even if it is just a middle initial. Since it generally takes a few months for a new address to show up in computer databases and other public records. as a result. enhances your chance of success and helps to keep your search costs down. someone who has moved a year or more ago should be relatively easy to locate through a database or public record. Any qualifying information developed. Occasionally. You can expect to spend much more time and money to locate this type of subject. This type of subject will often use post office boxes or mail drops instead of his physical address. your investigation plan would include researching sources such as court filings. bankruptcy petitions. These filings may also contain a more current last known address for the subject. For example.probably need to conduct some public record searches in order to develop additional qualifying information on the subject. Therefore. social security numbers as well.
your next step will be to check with directory assistance. you will be able to determine what approaches to pursue during your search. Occasionally people change their telephone number but remain at the same location. 97 . creating a profile of the subject also allows you to make a basic cost determination as to whether or not to conduct the search. On some occasions you may find that the subject is still residing at his last known address. As a result. If the telephone number you had was disconnected. Making Sure that the Subject has Actually Moved Your first step should be to verify that the subject is no longer at the old address or telephone number that you have for him.has elapsed for the new address to appear in any public records or databases. if you have several witnesses to locate you must balance their relative importance to the case with the efforts required to locate each witness. Initiating the Search While no two searches will be conducted in exactly the same manner the basic preparation will be the same. All litigation requires prioritizing the work in order to spend what resources you have in a manner likely to produce results. You may have to contact a neighbor or visit the location in order to be certain. Cost Benefit Analysis In addition to helping you determine which techniques to utilize in locating a subject. Therefore. Once the initial preparation work is done. you will probably need to conduct a series of interviews with neighbors and family members in order to locate this witness. or if you did not have an original telephone number.
Site Visit If you want to make contact with the witness either to interview him or serve a subpoena. but the Internet allows you to search a greater area and with less information. Contacting Neighbors and Landlords by Telephone When a site visit is not practical. your next step should be a site visit. Go directly to the residence and knock on the door. as it can take a while for new telephone number assignments to make it into the general directory. go ahead and check with the neighbors. If the person is not home. you can still contact the neighbors and landlord by telephone using a reverse address computer search. As a result. You can search for a person by city. There are several free reverse address search engines on the Internet that will provide a telephone number for a given address. state or nationwide via the computer. and there is a good chance that not all of the subject’s neighbors are listed. If you do not have access to a computer you can also check for neighbors’ telephone numbers by contacting the 98 . If the person has moved fairly recently tell the operator that you are looking for a new listing.Directory Assistance You have the option of using directory assistance by telephone (411) or using the different directory assistance services available on the Internet. If the property is a rental property also check with the property owner. it has become harder to locate people through directory assistance. Therefore. either because of time and money issues or because of geography. In recent years. These services are predicated upon the telephone customer having a listed phone number. Both the neighbors and the former landlord may have a forwarding address or telephone number for the subject. there has been a shift towards protecting privacy. the telephone searches will be more accurate. fewer and fewer people have a listed telephone number. In general.
attract people from all over the country. 99 . and perhaps most importantly. This information will help you to determine your search approach. such as Las Vegas. However. Finally. the ability to locate jobs in other parts of the country has grown dramatically in the last few years. If the move was the result of a job change. If he is a defendant. some cities. it is proper to tell the neighbors why you are trying to contact the subject. The Postal Carrier If you notice the mailman while you are out at the subject’s prior address make sure that you ask the carrier about the subject. try to ascertain the reason for the subject’s move. it is becoming more common for people to move away from their birthplace. New York. People move on the average of every three to five years and usually stay within the same region. you may just want to say that the subject was involved in some legal proceedings that are moving to the next phase and leave it at that. On the other hand. What to Tell the Neighbor If the subject is a witness in the case. if the neighbor states that the move was based upon financial hardship. In addition. ask if the neighbor knows the name of the new employer.reference desk at the local library. The carrier may have additional information regarding the location of the subject. you may want to check for bankruptcy filings or lawsuits against the subject. Hence. try to get the neighbor to tell you when the subject moved. Los Angeles and Miami. Most phone companies provide a reverse directory to the library. or the region where the new job was located. There is often a requirement during legal proceedings to provide a current address to the court. While talking to the neighbors.
Databases The easiest subjects to locate are people who have moved more than six months prior to your search. If you have a last known address. since there is a chance the letter could be forwarded to the subject. by sending a letter to the subject’s last known address that is marked “address correction required”. date of birth or social security number you should be able to locate this subject by spending a relatively small sum of money through a fee for service database. which regulates the use of these types of services to ensure that such information will be used for lawful purposes. This type of search is based upon the public record portion of a credit bureau report. In addition. commonly called the “header”. have an unusual name and are gainfully employed. Some subjects will be easier to locate through directory assistance or the Internet. then you will have to determine your next course of action by evaluating the other sources available. liens and judgments. which may include property transactions. on occasion. including fee for service databases. However. and also upon consumer public filings. while other subjects will most likely be found through public records or interviews. Determining which tools to use depends on several factors including the budget available for the search. the lifestyle of the subject and the reason for the search. Some of the search firms that offer public record credit header information have joined together to form an industry watchdog organization named IRSG.Address Correction Requested If you are unable to visit the subject’s old neighborhood you may have success. recently passed federal legislation entitled the Gramm-Leach100 . This is an old technique that may still work. Tools of the Trade There are a variety of tools available to assist in locating your subject. the length of time since last contact with the subject. make sure that it is legally permissible for you to contact the subject before trying this approach. Should you be unable to locate the subject during these initial steps.
Each state has different guidelines as to what is public record. these reports can also be a good source for locating an individual. there are plenty of other tools at your disposal. Your best public record search tools will be traffic tickets. Therefore.Bliley Act has somewhat limited the allowable uses for credit header information. if you do not have access to these types of searches. Criminal and traffic filings plus consumer debt lawsuits will be the most helpful for providing information. so you will need to learn about your own state’s regulations. addresses and friends or relatives. Write down on your worksheet any pertinent information. This search is less effective with a common name. it may also be helpful to review older filings. There you may also conduct a search based upon a person’s name. as in some counties it is common to list property information under a husband’s name only. you will need to discuss your uses with a representative from a provider to ensure compliance with the act. the open records act permits access to police reports. Therefore. court cases. Home ownership is at the highest level in our country’s history. including qualifying information. public record sources were the proven method for locating address information. Assessor’s Office. the following records can be good sources of information: 1. There are a large variety of other public records available that may produce address information. Public Records Prior to the advent of databases. Fee for service databases are a good tool to use if you have access to them. As a result. Court Filings. They will also be able to provide advice as to the different types of searches available and what type of information is needed in order to run those searches. auto accident reports and property records. except under very limited circumstances. For locates. telephone numbers. 2. Here in New Mexico. The chapter on public record research has already covered the different types of records and how to access them. If you have no qualifying information on your subject. and also when searching for women. If property is 101 . However. the County Assessor’s office is a good place to search for address information.
UCC Filings. The County Recorder’s Office is the repository for a large array of documents that need to be publicly recorded. social security number and provide lender information. Cities and municipalities throughout the country often require a person operating a business to obtain a business license. Some states have homeowner’s exemptions while others have head of household exemptions. Business Ownership and Business Licenses. 102 . The records will be divided into two categories. 3. In addition. Grantor and Grantee. some states require that businesses operating under a name different from the owner’s name register as a fictitious business. Often the registration form will contain a residence address for the individual identified as an owner. including the names of family members. 6. but often requires an in-person inspection. Make sure to check both types of listings. Most states regulate and license a variety of occupations. These records are maintained at the local level usually in the City Clerk’s office or at a specific business registration division. A wealth of information is contained in these filings. This information is sometimes available over the telephone from the regulatory agency. 5.found under your subject’s name look for an exemption that indicates if the property is the primary residence. UCC filings are recorded at the County Recorder’s office and often with the Secretary of State’s Office. officer or director of the business. judgments. Most states regulate corporations through the Secretary of State. that is usually an indication that it is the primary residence. in the case of tax liens. These businesses are usually registered with the County Clerk’s office. Professional Licenses. tax liens and releases of liens. If the property and mailing address are the same. corporations and other business entities are required to register with the state government. mortgage companies and. County Recorder’s Office. Most UCC filings will identify a business address. 4. The information can be accessed by the name of the licensee or by business name. Further. you can obtain address information used by a subject who works in a regulated field. Compare the mailing address listed against the property address. the social security number and address of the subject at the time the lien was recorded. As a result. A different mailing address might indicate that the property is used as a rental. This includes all real estate deeds and purchase agreements.
Usually. 8. searching through marriage records can prove to be very helpful in locating a female subject. Some states restrict access to certain types of police reports. in writing. However. also known as a short-term undercover contact in which you use an innocuous and unrelated explanation for needing the information. be talking to friends. Some requests may have to be done in person. Because women generally change their names when they get married it can be more difficult to locate a female subject than a male subject. arrest and certain incident reports are often public records that contain address information. The case preparation investigator will. It is better to say that you are “trying to get in touch” or “need to get in touch” 103 . but may include address. for the most part. Be patient when conducting this type of locate. It is a fairly quick and inexpensive process to check the different indices for these public records. Some “gag” approaches are discussed in the section on verifying the subject’s address. the words you use to approach the witness are critical. These indexes can be searched by either bride or groom’s name. Police Reports. Marriage records are maintained at the County Clerk’s office. Always ask if there is someone else who might know how to reach the witness. neighbors and co-workers about the subject. birthdate. Interviews Interviews are still one of the best tools for locating people especially someone who left his or her last known address fairly recently. For example a landlord may provide you with the names of family members of your subject who can then be contacted. Marriage Records. relatives. and by mail or fax. on occasion. As with any interview you conduct. Other searches can be done over the telephone or Internet. you will be able to be direct with these people about what you want to know. Information contained in these records will vary from county to county. traffic accident. social security number and the name and address of witnesses. you may need to use a “gag” or “pretext”. Many times a person you interview will provide you with the name of another person to interview. other types. Some localities will also include occupation and parents’ names. Therefore. including police blotter.7. However.
Most of the free resources are telephone directories which search nationally for listed telephone numbers. Since its inception there has been an increase in the number of governmental agencies that are providing information on the Internet. These searches are all free. The Internet The Internet has produced an explosion of sources for locating individuals. There are other directories available including high school and college alumni directories. As a result they are not good tools to use in searching for someone who does not want to be located. All of the major search engines. This includes obituaries and some government employment sites 2. If the name is a 104 . enclosed in quotation marks. Both search engines are easy to use. If your subject is not one of the individuals listed. those identified may be relatives who can be contacted for information. Google. During the interview process. Assessor’s and court records provide information that will be the most useful for locating individuals. An uncommon name may produce only a few listings for that last name. which for locates is usually short in duration.with someone rather than “trying to find” or “trying to locate” someone. Residential and Business Telephone Listings: To use the residential listing’s page. Infoseek and Alta Vista. Internet Search Tools 1. These sources require self-reporting. If the name is uncommon you may be able to search using only the last name. Before making contact ask yourself what would motivate this person to help you by supplying information. By typing in your subject’s name. have telephone directory searches. Yahoo!. simply type in the first and last name of the person. you need to think of a motivating factor for the person you are talking with to get him or her to help you. Lycos. Search Engines: Some of the best general tools to use when looking for information are search engines such as Yahoo! or Google. you will pull up any article or website in which the subject’s name appears.
5. 4. The Yahoo! Yellow Pages directory allows you to search by categories of businesses. This is especially helpful for locating the nearest assessor’s office or county courthouse for a specific locale. On these sites. Magistrate and District Courts throughout New Mexico are linked together on one web site.common one. and it will provide the name and telephone number listed to that address. and probably the city. New Mexico offers a few free searches which may be of use in locating individuals. The Yahoo! Yellow Pages site also allows you to identify government agencies anywhere in the country by typing in the city and state of the governmental agency. where you believe the subject is located. New Mexico also operates a web site that allows you to search for corporations under an individual’s name and to search for directors and officers of a corporation under the entities’ name. criminal. The amount of free public records information that is accessible on the Internet varies from state to state and county to county. Similar to reverse telephone directories are reverse address directories. There are a couple of drawbacks to this and other telephone directory listings. including the initial share information. Reverse Address Directories. but it is a great time saver to be able to check the website first. It also allows you to search within a specific city and for entities near a specific address. traffic. The site lists civil. as 105 . domestic relations and probate filings. You will need to view the files to get the address information. Governmental Searches. you will need to enter at least the state. Most of the free web site searches on the Internet are telephone directories that allow you to search nationwide based upon a name. You do not need a name to run this type of search. you enter an address. A summary of corporate filings. 3. The listings may be out of date and may contain so many individuals with the same name that it is too time consuming to telephone all of them. Reverse Telephone Directories. For example. If the number is listed you will be able to obtain a name and address which correspond to that telephone number. But what if you have a telephone number and want to search for a corresponding address? There are a variety of directories that permit you to enter the area code and telephone number for a residence or business.
the witness needs to be located in order to testify at a deposition. The second scenario involves judgment debtors that “skipped” town during the course of litigation over past due rent on commercial property. you are ready to begin your locate. determined where and when the last contact with the subject was. While the accident occurred eighteen months ago. According to the accident report. They serve only as a general example for illustrative purpose. which ensures the highest ethical standards for fee for service brokers. Once you have completed your profile. All locates are different. but these profiles will help you determine the steps to pursue during your search. and have familiarized yourself with the different search techniques available. None of the profiles are based on actual people. Make sure that any firm you use is a member of IRSG. You will need to check out different government websites to see what types of searches are available in your area. Fee for Service Databases. 6. The vast majority of Internet sites that provide useful information for locating subjects are fee for service database companies. Two Sample Locates The following scenarios were designed in order to assist you with learning the process of locating a subject. The first locate scenario involves a witness to a car accident that occurred the previous year. She was the only witness listed on the accident report and was very favorable to your client. while others are new to the business. The Accident Witness The accident witness was standing on the corner waiting to cross the street to return to work after her lunch break when she witnessed a city bus crash into a car. Some of these services have existed for years via direct access databases.well as the name and address of a registered agent for service of process and the corporation’s address are also provided. her name was listed as Mary 106 . assessed why you are searching for your subject.
the telephone number was disconnected with no forwarding information provided. In our hypothetical. Unfortunately. there were 27 L. We know that she was returning to her work after her lunch break. address and telephone number on your sample worksheet. Additionally. You should also run a reverse address search on Mary’s old address and a cross-reference telephone number search on her old phone number.Hunt. Start your locate by preparing your profile. It may be that the phone number was registered in a family member’s name. Write down her name. your city and statewide telephone search found no Lincoln Hunt. If the reverse address search identifies a possible husband you should rerun the white page Internet search under the husband’s name. which can search by name and last known address. Hunts statewide-too many to call unless you have no other option. addresses and telephone numbers of some of Mary’s neighbors who may have known her when she lived at the old address. Anytown. At this point. If the property owner has a different mailing address. Check both citywide and statewide in case she moved to another city within the state. USA 00000 with a telephone number of (000) 123-4567. cross-referencing the number and address provided a listing for Lincoln Hunt. the person may have been Mary’s landlord and may know where she moved. Search the assessor’s records for any other property owned by Mary or Lincoln Hunt in the event that they purchased a new home. Step two would be to check an Internet white pages website for Mary Hunt. Therefore. Using the reverse address search you can also get the names. Unfortunately. it is possible that she was employed in an office within walking distance of the accident location. it might be worthwhile to search the local assessor’s office for the owners of Mary’s last address. this would be an appropriate time to do so. if you have access to a fee for service database. Tell him why you are attempting to locate her. 107 . However. such as a husband. The accident report listed an address of 123 1st Street. Your first step would be to call the telephone number listed on the accident report.
you would use the rental application that the property owner had the Slicks fill out when they rented the space. this will allow you to know for certain whether Mary still lives at that address. you will be searching for Sammy and Stella Slick. especially from a neighbor or the landlord. allowing the owner to retake the property and collect attorney’s fees in addition to several thousands of dollars in damages. and as part of the prayer for relief. Check directory assistance for the new city using Mary’s restored maiden name. However. Fortunately. They operated a trendy nightclub in a large commercial building which they rented from your client. it may be effective to visit it and talk to the neighbors. a search of court records revealed a divorce filing soon after the accident had occurred. unless you can locate the Slicks your client will have no way to collect the money. social security numbers. While Mary’s pleadings initially listed the address on the accident report. but during the litigation. you will have to start actively searching local public records. In this case. Mary is listed with directory assistance. use a reverse address search on the new address in case she is staying with a family member or friend. In this case. they suddenly quit fighting and disappeared. 108 . requested that her maiden named be restored. The “Skip” In our next profile. and you were able to telephone her and make arrangements to take Mary’s deposition. the eviction attorney secured a default judgment. she filed a notice of new address just prior to the divorce decree that listed a new address in another city. If none of these approaches have supplied you with a viable lead. Start by searching divorce. dates of birth and local references. Her maiden name was listed as Storm. a residence address. Once the Slicks stopped responding. they stopped paying their rent. The Slicks initially fought the eviction through the court.If the original address is not too distant. If the time spent is cost effective. bankruptcy and traffic filings. After a time. Start your investigation by creating a subject profile. Mary filed for the divorce without a lawyer. If that still does not produce a good telephone number. The application contains a wealth of information including full names.
Write down the locations identified on the returns of service that list where the Slicks had been served the summons and complaint in each lawsuit. The telephone number for the reference listed on the application is a cellular phone number connected to a computerized voice mail system that beeps without a greeting from the recipient of the call.In this case. lawsuits. Directory assistance did not have any new listings under either Sammy or Stella Slick. you need to check recent public records such as traffic citations. arrest records. you already know that the Slick’s telephone number listed on the application has been disconnected with no forwarding number. Document the dates for the last actions filed and the outcome of any lawsuit if the suit is no longer pending. The higher level court had one lawsuit brought by an ex-employee who claimed back wages from the Slicks. Evidently. Therefore. liens and bankruptcy proceedings. Also. You also have contacted the Slicks’ bank listed on the application and found out that their accounts have been closed. the landlord. 109 . it may very well be the lawyers are not familiar with the tools and techniques needed to conduct a locate search. Also. In this case. write down the contact information for the individuals or their lawyers who filed lawsuits against the Slicks. Start the locate process by reviewing any other lawsuits pertaining to the Slicks. In this case. you have located two lawsuits in the lower level court. Because the Slicks have only recently disappeared. the tools available for your use are somewhat limited. the liquor purveyor and the exemployee all may be good sources of information. A fee for service database would most likely not provide any new information in this type of situation. Interviewing the neighbors in this situation would be of little use since it is unlikely that the neighbors would have had contact with the subjects. they had fired him because he had been interviewed by the local media following a drunk driving accident involving a prominent patron of the club. Even if the other lawyers have not located the Slicks. your investigation plan will probably consist of interviews with any other litigants involved in cases against the Slicks. One is an eviction from their high end rental house and the other a lawsuit brought by a liquor supplier over the balance owed by the Slicks for the liquor they had purchased for their club.
an ex-landlord and a business that made regular deliveries to the Slicks. date of birth and social security number of the bouncer. if they are public record in your jurisdiction. but both were over a year old and listed information you already had. you might find the names and addresses of other employees identified as creditors if the Slicks failed to make payroll. You located two incident reports. there was no filing. In this case. go over to the county recorder's office to check for any recently filed documents pertaining to the subjects. if there were a file. and the liquor distributor. One documented the drunk driving arrest of the prominent patron who had been in the accident. However. The other documented an altercation between a bouncer at the club and a patron which occurred one month prior to the closing of the club. Next call the landlord. Finally. In this case. Make sure to document all of the contact information for any person listed in the reports. The liquor distributor employed a driver who had been dating one of the bartenders from 110 . Run an Internet reverse address search on that address. Also. the names of two ex-employees. that had been filed the past week. It is time to assess the new information that you have collected. Next. the ex-employee who had filed the lawsuit. run directory assistance searches for any of the people found in the lawsuits or police reports whose contact information was not listed in those documents. there were two speeding tickets for Sammy Slick. as the address may belong to a relative. The incident report listed the full name. Always start with those most likely to cooperate. You have a different address. incident. Check with the police department for any accident. The address listed for the Slicks was a different address from the club address or their residence address. but no home address or telephone number. In checking the application you found that the address on the lien was the address where they lived prior to the high-end rental house. from a tax period of three years ago. In this case there was a tax lien.Check the bankruptcy court for any bankruptcy petitions. or arrest reports. The ex-employee was able to give you the names of other employees and the names of some of the Slicks’ friends. check traffic court for any traffic citations. Check the address found on the tax lien against the rental application.
the club. the Slicks told the bouncer he was on his own in facing the charges. Lauderdale. This will be true for most cases. A check with directory assistance for new listings for the Ft. but did not identify a lawyer. before you do. it is tempting to toss in the towel and stop the investigation. there is one more source to follow up. The Slicks told the bouncer that they had enough of this town. the Slicks told him they had been asked by some investors to start up a nightclub in Ft. Thank the bouncer for his help and wish him luck with the criminal case. At this point. Unfortunately. Lauderdale area gives you a telephone number and address for the nightclub. the prosecutor filed criminal charges against the bouncer in the beating of a club patron. the bartender and the employees identified through your sources did not have any additional information on the Slicks’ whereabouts. Call the individuals who were identified by the previous sources. the last time he spoke with them. Check the lower level court for criminal cases pertaining to the bouncer. The criminal files listed a telephone number and address for the bouncer. 111 . Florida. The investors had already signed the paperwork and wired the good faith money to the Slicks. However. You have found them! Verification An unverified address is of little use. In interviewing the bouncer you learn that the Slicks recently promised the bouncer that they would get a lawyer to represent him on the criminal charges. The landlord lived out of state and was unable to provide you with any additional information. The club was to be located in a marina along the Intercoastal Waterway and was going to be called The Captain’s Ride. there are times when it is not that easy to verify the address you have found. In the above scenarios you were able to verify the contact information in a fairly straightforward approach. In this case. When he challenged them about breaking their promise to him. Call or visit the bouncer and let him know that you are trying to locate the Slicks and are not calling about the incident that led to the charges being filed against him. However. However.
It helps that person be comfortable when confirming the information. However. This is appropriate unless the subject is represented by counsel. When calling a neighbor or landlord. As long as you do not impersonate a law enforcement or government agent. be truthful about who you are and why you needed to locate this subject. it is permissible to use a harmless reason for needing to verify the subject’s address. and efforts to verify that the subject is at that address have been inconclusive. If no telephone number is found or if the subject has a system that identifies the caller. Calling a subject directly to see if he has received a previous mailer about an upcoming fundraising drive or other event. The telephone numbers of neighbors and can be obtained through reverse address telephone or real property record searches. If the searches uncover a telephone number. There are a variety of methods that can be used to verify the address. then a neighbor near the address or the landlord if a rental property. there are times when you may not want to let the subject know who you are and what you are doing. can work as well. then the best approach is to visit the location in person. or claim to be an emergency medical service person. In those circumstances. When the subject states that he has received no 112 . should be contacted. Ask the neighbor if he or she would accept a package for the subject. in which case no contact of any kind is permissible. the number should be called. the neighbor will usually tell you if he or she knows the subject. the investigator who sits at the computer screen all day running database searches. At this point. If the address found for the subject is local. All too often these investigators have stopped performing the critical function of verifying whether the subject is actually at the address located. Often these firms will advertise a very low cost search.Verifying Your Subject is at the Address Found Modern technology has led to the birth of the data detective. For the messenger approach. If the subject lives in an apartment building. There are many times when you can directly contact the subject of your search. state that you are “just verifying an address provided on an application” or you “need to send a messenger with a delivery”. say that you have to deliver a package to the subject you don’t want to send a driver out unless someone is around to accept the package on the subject’s behalf. you may be able to locate the landlord through the local yellow pages listing under apartments.
which focuses on how to conduct a background investigation. There are many other approaches you can adopt when verifying an address. be sure to keep them harmless and within the law. However. and make sure that the source feels that there is a reason to verify the information. The next chapter. Under no circumstances should you ask them for a donation. offer to send out another mailer and repeat the mailing address.information. has a myriad of applications for the case preparation investigator. 113 .
the background investigation can produce a wealth of admissible information that can undermine an opponent’s credibility.CHAPTER SIX CONDUCTING A BACKGROUND INVESTIGATION An often overlooked aspect of litigation preparation. This information can be woven into a cross-examination in a manner that effectively neutralizes the witness’s testimony. A background investigation can yield information showing that the incident being litigated was part of an ongoing larger problem and was not an isolated incident. A thorough background investigation may provide the information for evaluating negligent hiring and retention claims by identifying issues that the company or municipality knew or should have known about its employee had it adequately checked 114 . OVERVIEW ● Uses for background information ● Creating the investigation plan ● Internet search engines ● Review public records ● Conduct interviews Purposes of the Litigation Background Investigation Background investigations play a pivotal role in case preparation by providing ammunition for use at settlement or during trial. Background investigations serve to identify honesty and veracity issues of opposing parties and witnesses.
This allows counsel to develop a strategy that controls information. A case of sexual harassment is an ideal candidate for using credibility issues in order to get the case to a judge or jury. Criminal Convictions A felony conviction that occurs within ten years prior to the current litigation is almost always admissible for impeachment. an embezzlement or fraud conviction is always usable during settlement negotiations. a background of your own client helps to avoid unpleasant surprises at trial. A certified copy of the judgment and sentence is all that is needed to show this conviction. 115 . Reputation for Honesty and Veracity Litigation often involves credibility determinations. Finally. such as defrauding an investor or falsifying a bankruptcy petition. which might otherwise turn the trier of fact against your client. Whether arguing for or against summary judgment. In addition. It is important for the attorney to remember that credibility is also a determining factor in surviving a motion for summary judgment. as well as through interviews of neighbors and co-workers. Witnesses who can testify to an individual’s reputation for honesty and veracity can sometimes be found through reviewing litigation files pertaining to the subject. Even if there is a good chance that the information would not come in at trial.out his or her background. especially in matters where a summary judgment motion can be made. Although felony convictions are most often used for impeachment. certified copies of documents that depict an actual act of dishonesty. attorneys often focus solely upon the factual issues and whether issues of fact exist that require a judge or jury to hear the case. can be of tremendous help in assisting a trier of fact in determining whether the plaintiff or defendant is more likely to be credible. other non-felony convictions may be admissible if they are relevant in some way.
once the door is opened by opposing counsel. it is not unusual for the preemployment investigation to be conducted in a superficial manner. in all probability. For example. A background check including a search for speeding citations. or even a false job resume or application have been used to impeach. However. Negligent Hiring and Negligent Retention There are a great number of jobs that require the employer to conduct a background investigation into the fitness of a job candidate. you are litigating an auto accident caused by the high rate of speed driven by the opposing driver. an employee may do something unlawful. Submitting a knowingly false statement on a loan or professional license application. In that case. It may be beneficial to have some statistics from the National Highway Transportation Safety Association (NHTSA) to show the low percentage rate of getting caught for speeding. any documents that pertain to an intentional act of dishonesty can be used to impeach his testimony. you can argue that the opposing driver speeds out of habit. identifies two citations per year for the past five years. Habit A background investigation can also produce information pertaining to the opposing party’s habits. sped x number of times per these statistics.Opening the Door to a Range of Evidence In cases where the trier of fact is allowed to assess the credibility of the opposing parties. After employment. opposing counsel sometimes opens the door to character evidence through his client’s direct testimony. By producing a prior public 116 . Counsel than can infer that getting caught speeding twice per year meant the driver. overlooked important negative information that was publicly documented. domestic abusers and bar bouncers who rough up patrons. A negligent hiring claim can result from a showing that an employer or its subcontractor investigation of job applicants. Thus. Other types of litigation that can be enhanced through a background investigation to show habit include cases against drunk drivers.
and a list of current and former staff members. including those who were present at the time of the incident. who was injured when a bookcase fell on him. which you can log onto for information. With the client’s assistance prepare a list of people who send their children to the facility. you will need to utilize other sources to develop general information about the day care facility. the center may have its own website. some false. Ownership and management information. In the following scenario. it is apparent to a jury that the employer did not conduct a satisfactory investigation before hiring. You will also want to find out about the owners and operators of the center. A client meeting should begin the background investigation.record of similar conduct. about the types of people and businesses involved in operating day care facilities. A background investigation will often entail a mix of interviews and document review. including those who have withdrawn their children. Most litigation involving day care centers focuses upon negligence and a lack of adequately trained staff. You will want to check for corporation 117 . If the family knows very little about the operation of the center. In the 1980’s there were several high profile court cases in response to horror stories. including whether it is an independent business or part of a national chain is helpful. some true. If it is a national chain. Center XYZ is a neighborhood day care center located in a stand alone building near a retail shopping center. Creating the Investigation Plan As with all investigations. Your clients are the parents of an attendee at the center. breaking his shoulder and arm. including both public records and self-produced documents from the subject business. a background investigation should begin with a basic plan or outline that helps identify which sources will provide the information you seek. Sample Background Investigation of a Day Care Center and Its Employees For many people there is no choice but to put a child in day care. the day care center will be referred to “Center XYZ”.
prefiling. This can be done. You can use the information contained in the articles to locate lawsuits and 118 . if the lawsuit has already been filed. You should also check the local newspaper for any stories pertaining to the day care center.and local business licensing information on the center. then the visit will have to be conducted through the discovery process. The final aspect of your plan should include interviewing parents and former staff members and any individuals identified in court filings or police reports who might be able to provide information on supervision of attendees. In addition. The investigation following is thorough. However. Being able to show that the understaffing and unsafe conditions that led to this incident occur at other of their centers located throughout the country can enhance the settlement value of the claim. You will also want to conduct a litigation search on the facility. The agency will maintain a file documenting each inspection conducted by the regulatory agency. Conducting the Investigation Once you have a rough outline of your investigation plan you are ready to begin. its employees and owners. as a prospective parent. The next facet of your investigation will be to review the file of the governmental regulatory agency which oversees the day care center. and check for obtain copies of any articles written about the center found there or on newspaper websites. Make sure to document the names of individuals mentioned in the articles. You may also wish to make a site visit to get an overview of the area where the injury occurred. but not exhaustive. you should obtain a five-year printout of incident calls by law enforcement to the center and any incident reports that pertain to personal injuries or lack of supervision. particularly if the articles reference other litigation against the company. It can be tailored to match the resources you have available by prioritizing the steps to follow: General Background Information Start with a general Internet search to see if there is a website operated by the center.
you may need to call the overall state agency responsible for regulation and licensing. and ask which agency regulates day care centers. check for business licensing and ownership information for the center. you should contact the state agency responsible for oversight of the center. Make arrangements to view the file pertaining to safety inspections. In addition. While in contact with the regulatory agency. the investigator may obtain useful information including names of staff. accreditation agencies and other day care center locations. Is it a corporation or a partnership that owns the center? Write down the names of the directors and officers. To locate the specific agency. request a list of the current staff working at the center. If the majority of the incidents were reported by parents than you know the staff is not reporting incidents. also called surveys. if any. Review the Regulatory Agency’s File Next. which are conducted at the day care center by the state agency. Make sure to write down the names of the inspectors and parents who reported incidents that were not otherwise self-reported. Review a copy of the business license and write down any names associated with the business. As you review the file make notes and request copies of any documents indicating operational problems that needed to be corrected and any follow-up information indicating that identified problems were not corrected. 119 . some states have instituted a fingerprint check of staff persons to check for previous arrests. Check to see if your state does a fingerprint check. If so. which the center is usually required to do.police reports listed in the articles. and ask what. criminal violations exclude an applicant from working at a day care center. parents. Business Ownership Information Next. Look for documents indicating if the facility “self-reports” or notifies the regulatory agency when problems occur. find out if the state registers staff that works at day care centers. From these sources.
You will have helped to identify possible causes of action and prepared a clearer picture about the company. especially the complaint and disposition for each case. and a brief synopsis of the factual claims and defenses. You may wish to make a site inspection if you can do so within the confines of the law. their counsel of record. its employees and the operation of the facility. especially if the center failed to correct previous problems that were identified in other lawsuits. Focus on issues indicating that they “knew or should have known” of the potential for this type of incident. There may be some additional investigation that needs to be performed once the defense responds to the lawsuit. including other businesses they had that went bankrupt. Pay special attention to any previous lawsuits that relate to your current matter. A sample court file review summary is enclosed in the Appendix. former staff and any other people identified in the documents you obtained.Law Enforcement and Litigation Information Submit a request to the law enforcement entity that would respond to any calls at the center. Also check for arrest reports on any staff. You will also want to write up a summary of any litigation identifying the names of plaintiffs and defendants. focus on staffing ratios and supervision issues. You should also check for bankruptcy proceedings involving the owners. or associated with the operation and ownership of the center. along with their telephone number and address. interview parents. Get copies of any documents that you do find. At that point your focus will be 120 . managers and owners. Request a five-year printout by address for “call outs” and reports pertaining to that address. go to the local courts and check for lawsuits and criminal filings involving the center and its employees. Interviews Once you have all of the documents collected. Make sure to write down the names of the attorneys that represented each party. Also. By the time you have completed all of these steps you will have assembled a great deal of information to help move the case forward. There may come a time that you will wish to speak with those attorneys. With a complete list of the names of individuals employed at the center.
on finding documents and interviewing people that address specific issues raised by the defense. 121 .
The accident scenario used in this section incorporates a common type of injury accident that resulted from a left-hand turn by a driver as oncoming traffic approached. This is particularly true when there are eyewitnesses to the accident. 122 . for most accidents. The section demonstrates how to conduct a typical auto accident investigation. OVERVIEW ● Review the accident report ● Accident scene inspection ● Photograph vehicles ● Witness interviews and signed statements ● Photograph the damage to the vehicles ● Check public records We often hear about the importance of accident reconstruction in determining the cause of an accident. a reconstructionist is not needed to prove liability. Knowing how to investigate an auto accident can make the difference between a case that settles fairly easily and a case that drags on for years. however.CHAPTER SEVEN INVESTIGATING AN AUTO ACCIDENT There are more lawsuits filed over auto accidents than any other type of civil lawsuit.
since the accident occurred. In addition. Typically. passengers and witnesses present when the accident occurred. and a description of the weather and road conditions at the time of the accident. The accident happened at 7: 30 AM. Fourth Street. At the time of the accident the weather was clear and the roads were dry. When litigating an accident the investigator does not always have access to the client. 123 . months. has two lanes of traffic and a left turn lane for both directions. including their contact and qualifying information. the report includes a narrative summary of how the accident occurred prepared based upon statements from the participants and witnesses. Often he or she must create the investigation plan from the accident report prepared by the police officer who responded to the accident. the report will identify the drivers. if available. or sometimes years. the investigator’s job covers three aspects of the case preparation: to obtain a statement from individuals who witnessed the accident. Review the Police Report Most accident reports contain the same types of information. The Investigator’s Role Litigation investigators are usually not brought in to investigate an accident until several weeks. A description of injuries to the drivers and passengers and of the damage done to the vehicles will also be included. on a crisp autumn morning. which runs in an east-west direction.Accident Scenario The accident took place at the intersection of Fourth and Main during the morning rush hour. the direction of travel of the vehicles. Main Street. which runs in a north-south direction. Finally. At this intersection there is a traffic light but no left turn arrows. a list of citations issued by the officer and the factors the officer believes contributed to the accident. has two lanes of traffic and a left turn lane for both directions. to photograph and sketch the location of the accident and to photograph the damage to the vehicles. The report will contain information regarding the location of the accident.
Creating the Investigation Plan Typically. However. you can provide a statement or testify.. as a precaution against his later changing his mind and blaming your client for the accident. Often you will not be able to photograph the opposing driver’s vehicle if it has been towed to a salvage yard. it is a good idea to run a litigation search on the driver of the opposing vehicle looking for accident related lawsuits and traffic citations. Finally. You will need to photograph both vehicles. you should plan on visiting the scene at the same time of day as the accident occurred and canvass pedestrians and residents in the area to see if they observed the accident. it is not practical or safe to photograph an accident location at night. you may want to obtain records from the municipality where the accident occurred regarding the timing of traffic lights. This can be particularly helpful in proving negligent entrustment.e. if need be. Instead. Many investigation manuals recommend that you obtain a statement from any witness who states that he did not see the accident. 124 . Since. When practical. installation of signs and removal of any obstructions. you may wish to make an additional trip at the approximate time of the accident to canvass the area. You will want to interview any witnesses listed on the report and obtain handwritten signed statements from the favorable witnesses. your investigation plan will include going out to the scene of the accident in order to take photographs and to diagram the scene. i. if possible. should there be a possibility that any of those factors contributed to the accident. particularly if no witnesses were listed on the police report. If the resources allow. but was allowed by the owner to use the vehicle. the driver did not own the vehicle. this is no longer financially feasible unless you encounter such a witness during a canvass. about the witness telling you that he did not see the accident. You may need to obtain written consent from your own client in order to photograph his vehicle if it is being held at a salvage yard.
be polite. make sure to document the location from all four directions.Conducting the Investigation As previously stated. this can only be done soon after the accident. On occasion people will approach you as you are documenting the scene. including speed limit and warning signs. as you may encounter someone who has information about the accident. and incorporate photographs that approximate the view of each driver as they approached the intersection. It is a good idea to bring a roller tape measure. after reviewing the accident report. Speak with them. should be the site visit to photograph and diagram the accident location. Site Visit Visiting the accident scene helps you to become familiar with the location and makes it easier to follow the witness’s narrative. When photographing the accident scene. when practical. and a fifty foot tape measure to take measurements at the scene. If he is unfavorable. If it is a busy intersection. However. try to go when traffic will be at its’ lowest levels. For anyone else. such as 10:30 AM or 1:30 PM. you may want to try to document this effect. If he turns out to be a favorable witness. listen to what he has to say and ask the person how he heard about the accident. It may be necessary to coordinate the site visit and witness interviews on the same day if the location is far from your office. you will need to get a handwritten signed statement from him. the first step. shrubs and curves. Interview anyone who states that he witnessed the accident. take notes but do not prepare a statement for him to sign. If this person heard about the 125 . including trees. a measuring device that calculates distance as it is rolled along the roadway. such as a person who did not witness the accident. Also photograph anything that might have obstructed either driver’s view. as the sunrise and sunset times change by about one minute per day. If a driver stated that the sun affected his ability to see. Photograph anything that might have been pertinent to the accident.
If the municipality made no effort to correct the problem following other accidents. If there were several accidents at the same location. go through the state department of transportation office. In other regions you have to get authorization from the insurance company. Consent to Photograph the Vehicles You will need to get photographs of at least your client’s vehicle before any corrective work is done. such as the addition of warning signs or the trimming of shrubs. which will be listed on the police report. as there is no expectation of privacy. Make sure that you have the vehicle identification number (“VIN”). a municipality may have been aware of a dangerous condition at the location due to the number of similar accidents that occurred there. Remember to photograph the vehicle from all sides and take establishing shots including of the license plate to prove that the vehicle is the correct one. However. This can usually be done through the local police. If the accident occurred on a state highway. If possible. you can photograph the vehicle without the owner’s consent. get the actual witness’s name and phone number or address. 126 .accident from another person who witnessed the accident. On occasion. when you call the tow company as that is how they organize their records. you should also get photographs of the opposing driver’s vehicle as well. you should obtain a five year printout identifying reports detailing accidents at that location. While speaking with area residents ask if there had been any physical changes to the scene. Inquire if there have been other accidents at that location. If the opposing vehicle is parked on a public street or is visible from a public area. In some regions of the country you can photograph the opposing vehicle at a tow lot without needing consent from the owner or insurance company. so you will need to inquire directly with the tow yard. there may be some liability for failure to correct the dangerous condition. do not trespass on private property to take the photographs.
talk with him briefly over the phone and make an appointment to meet with him in person. If you can’t make an appointment time within a day or two of your phone call to the witness. Discuss what factors the witness believes caused the accident. It will take longer than that. Also cover any attempts by either vehicle to avoid the accident. 127 . type. including color. making sure to cover the impact points for each vehicle and the specific location of the accident on the roadway. It is best to meet the person at his home since he can attend to other things while you write up the statement. Important questions include. make sure you confirm the appointment by phone the day before. When you make the appointment with the witness do not tell him that you need to get a written statement. and road conditions. If the witness asks how long you will need to meet with him. If the witness does not respond to your phone calls after a couple of tries. “What drew his attention to the accident?”. thank the person again for meeting with you. the weather. After the basic questions. statements made by any parties and any evidence of alcohol usage. such as braking or swerving. you will probably need to cold call him at home. since the witness may forget about the appointment. Other suitable places to interview a witness include a restaurant or the witness’s place of work. Ask about damage to the vehicles. Once you arrive at your appointment. Ask about the time of day. but most people will not mind the time once the interview has begun.Witness Interviews and Handwritten Signed Statements For an auto case you can typically telephone a witness listed on a police report. tell him approximately fifteen or twenty minutes. “In what direction and approximately how fast was each vehicle was traveling?”. as well as where the vehicles came to rest following the impact. injuries to any parties. Take out your notebook and start asking questions. approximate year and make and model?” It is permissible to describe a vehicle as “a small white pickup” or “a large black sport utility vehicle” if the witness does not know the actual make or model information. “Can you give me a brief description of the vehicles. have the witness take you through the accident chronologically. Make the appointment to meet as soon as possible.
and that the turning vehicle had no chance to complete its turn before the oncoming traffic reached the intersection. “The driver of the small white car caused the accident by not waiting for the traffic that was driving northbound on Main Street to pass before starting its turn. particularly if the statements clearly document the cause of accident. and to initial any changes he makes. In this type of accident.Since. you may have to take additional statements in order to prove that the opposing driver was at fault. Once the witness has finished reading the statement. Finally. provide a description of the roadway. the sample scenario involved a failure to yield to oncoming traffic. Once you have finished the interview. Some witnesses will even refer to the “nose dive” of the vehicle as it braked rapidly. write up the person’s explanation as to the cause of the accident. ask the person to read the statement to make sure it reflects what he has told you. have him sign and date the bottom of each page. tell the witness that you want to take a couple of minutes to “neatly” write up what the person has said and have him look it over to make sure that it accurately reflects what was said. you will need to show that the light was green for both parties.” Refer to the sample statement in the Appendix for reference. Those types of terms should be included in the statement. Often you can get a very descriptive picture of attempts to avoid an accident through such phrases as “the screech of tires” or “the smell of burning rubber”. Once you have completed the statement. i. There is no way that the car could have made it through the intersection before the northbound traffic reached the intersection. that the vehicle traveling straight was driving within the speed limit.e. any effort by the vehicle traveling straight ahead to try to avoid the accident would be especially helpful in assigning full liability against the turning party. For most accidents. the vehicles’ directions of travel and then run through the narrative. 128 . If the cause is less obvious. Let him know that he can write any changes he feels are needed directly on the statement. Also. An auto accident statement can be anywhere from one to four pages in length. you will probably have to obtain only one or two statements. Make sure to include why the witness was at the location of the accident and what drew his attention to the accident.
Often the decision to bring a lawsuit will hinge upon whether there are any assets to collect. The previously discussed steps are necessary to thoroughly prepare an auto accident case. It is more expedient to go directly to the agency when possible. if you need to obtain documentation as to traffic light timing or signs. There are times when both the legal information professional and the case preparation investigator will need to develop a basic financial profile of a subject.Public Records Finally. The next chapter covers the basics of conducting an asset investigation 129 . The quality of the investigator’s work is vital to achieving a successful result. while others will prepare a written response to your request. prepare a public record request to the agency in charge of maintaining those records. Some agencies allow you to come in and personally inspect the records.
These investigators do nothing but asset searches. OVERVIEW ● Creating an investigation plan ● Using public records to find assets ● When to quit the search Most investigators perform only a few asset searches in a given year. will serve as the subjects of the scenario. Sammy and Stella Slick. most asset searches will be conducted by researching public records. Other times. the litigation investigator conducts the search to help an attorney collect on a judgment that has already been awarded. and have evolved specialized techniques in order to obtain their information. During the previous locate process. For the case preparation investigator. whom you located in an earlier chapter. who does not routinely perform asset searches.CHAPTER EIGHT CONDUCTING AN ASSET INVESTIGATION Litigation investigators typically perform an asset search in order to assist an attorney in determining if a potential defendant has enough assets to make it worthwhile to bring a lawsuit against him or her. There are investigators who specialize in locating the assets of individuals and businesses. you conducted most of the searches that are necessary to locate attachable assets. 130 .
the individual probably does not have much in the way of assets. which includes the subject’s full name. You will need to begin the investigation with a subject profile. Conducting the Investigation Begin the asset investigation by searching for bankruptcy filings. An asset search will include extensive public record research.Creating an Investigation Plan Since an asset investigation is similar in to conducting both a background investigation and a locate search. make sure that your investigation plan develops this information at the beginning of your investigation. social security number and current address. Thus. parallel background and locate investigations. to a certain extent. tax liens and judgments against your subject. there is a good chance the subject has steady employment or has developed additional financial resources. Tax liens and judgments are recorded at the county recorder’s office. the assets protected by the bankruptcy can be viewed as a base line to which assets acquired after the bankruptcy can be added. you might need to interview your subject’s neighbors to compare the subject’s lifestyle to his level of income. It will be very important to review any bankruptcy petitions. 131 . A petition filed in bankruptcy court will list which assets are entitled to protection from creditors and which are subject to sale to pay off debts. On the other hand. On occasion. date of birth. If you are missing any of those elements. Federal law restricts the frequency with which an entity can file for bankruptcy protection. as the petitions will list a statement of assets and liabilities. if the tax liens and judgments were paid off in full. and financial accounts of the petitioner as well. income from employment. for subjects involved in cash businesses. Make sure to check for any releases of liens and satisfactions of judgments. and may also include follow-up interviews with sources of information identified through the public record research. If tax liens and judgments are still outstanding. Bankruptcy petitions may also show employment. your investigation plan will.
Further. Therefore. check for property ownership documents. Often the stocks have only a nominal value. trailers and airplanes. meaning the seller of a property funds a portion of the purchase and the buyer makes a series of payments directly to the seller to satisfy this obligation. UCC filings are renewed every five years.While at the county recorder’s office. You will also want to conduct a litigation search for divorce pleadings. the collateral listed in the loan becomes an asset. Once the loan is paid off. you should also search for UCC filings that identify collateral used to guarantee a business loan. In some states. real property assets are sometimes held by businesses. In other states you no longer have access to that information. Some corporations list stock held by officers. Also check for documents securing a mortgage. You may also find a contract between private individuals detailing “owner financing”. Divorce cases are a great source for asset investigations. you can legally search the motor vehicle records for vehicle ownership based upon a subject’s name and address. in anticipation of litigation. you can still search for ownership information for pleasure craft such as boats. While at the county recorder’s office. warranty and quitclaim deeds. which may be referred to as a trust deed. In addition. Often investigators overlook the possibility that a subject received a settlement or court award. 132 . you should also search for probate filings in case the subject was the beneficiary of a probated estate. accident reports may lead you to insurance settlements on accidents where no lawsuit was filed. as these will provide vehicle ownership information. as most divorces require disclosure under oath of the parties’ assets to be divided. You should also search for accident reports pertaining to your subject. or has a pending lawsuit where he may recover funds for personal injuries or other types of damages. but on occasion. They also identify financial accounts such as bank and money market accounts and mutual funds. accident reports and traffic citations may prove to be your best source for this type of information. While motor vehicle ownership searches have been limited. Make certain to search for business ownership and business registration information. In addition. The Motor Vehicle Department usually maintains these records. the stocks may have actual value. criminal and civil filings. including grant.
once they obtained the new job of running the club in Florida. they received some good faith money and became employees of the club. In some cases. There you may find other valuable information. However. rear-ending your client’s vehicle at a stoplight. stories and press release information on your subject. the likelihood is small that there are any assets available to attach. In another example. finding certain types of records can actually lead to a quick end to your investigation. you will have a pretty good idea of the subject’s financial position just from reviewing the files. Federal tax liens have priority over all other debts except for property secured by a mortgage. causing injuries beyond his policy limits. 133 . but may have been a lousy driver. if your search identifies a recent criminal case where the subject qualified for a public defender. and had no listed employment. you will need to balance your need for the information with the time and money it will take for you to develop that information. the best method to collect from the Slicks would be to garnishee their wages through the club or go after their stock ownership. it is highly unlikely that there will be much in the way of assets to recover for your client. For example. you will also want to search the Internet for articles. This person may have been great at his job. The Slicks The Slicks left a trail of judgments and evictions in their wake.Finally. When to Quit Your Search One of the difficulties with conducting an asset investigation is deciding how in depth you need to search. if a subject has outstanding federal tax liens for a lengthy period. Also. if your subject is the defendant in numerous civil lawsuits from credit card companies. Your remaining step would be to determine the club’s agent for service of process through corporate records and commence a proceeding against the club. and are first in line for collection. Therefore. As with any investigation. vehicle loan companies and landlords. such as grant or bonus money awarded to an individual for his stellar job performance.
no investigation will produce a recovery. it will take a good deal of effort to uncover the assets.A successful asset search requires a good deal of patience and creative planning. the subject is legitimately judgment proof and if this is the case. When the subject is determined to hide his assets. but it can be done. Often. 134 .
These types of lawsuits cover a wide range of matters.CHAPTER NINE EMPLOYMENT DISCRIMINATION INVESTIGATIONS Civil rights lawsuits represent a growing area of litigation. in two cases. we will cover a sexual harassment investigation. informally referred to as the Farragher and Burlington Industries decisions. represent one of the fastest growing areas of litigation in our country. the United States Supreme Court. such as sexual or racial discrimination or retaliation for filing a discrimination or harassment claim. In 1998. In doing so. OVERVIEW ● Fact pattern ● Developing an investigation plan ● Witness interviews ● Public records research ● Assessing the adequacy of the employer’s investigation Each year the US Equal Employment Opportunity Commission (“US EEOC”) receives tens of thousands of complaints alleging job discrimination. Employment discrimination claims. In this chapter. laid down guidelines as to when employers can be found liable in hostile work environment claims involving supervisors. discuss an investigation into a violation of civil rights by law enforcement officers. and in chapter ten. the court established an employer’s duty to investigate claims when brought forward by a victim of 135 . including discrimination in the workplace and deprivation of rights by governmental agencies.
He 136 . Mary noticed that Dan lingered around her workstation. and didn’t know “a good thing when it landed in her lap”. telling Dan that she had a boyfriend. a twenty-two year old accounts receivable clerk who works at a large corporation. Dan ran into Mary in the break room and during their conversation asked her if she had broken up with her boyfriend yet. Following the two decisions. Two weeks later. About one month after Dan took over as supervisor. and told her about what was happening. Because of the multiple levels of information that accompany this type of allegation. surprised by the change in Dan’s demeanor.this form of discrimination. As Dan walked away. he told Mary that she was still “a little girl”. Dan told Mary that he found her attractive and wanted to take her out for a date. The accounts receivable department has ten employees. While at lunch. Lori told Mary that she had a friend who worked with Dan at his previous office and that Dan had dated one of the girls in the office. Mary was shocked. He then changed the subject back to how the office was running. Dan asked Mary to join him for lunch to discuss how the department was functioning with a new supervisor. Dan. the sample scenario that follows is very detailed in scope. Investigation Scenario In this scenario. apparently annoyed by her response. which Dan seemed to accept. Shortly thereafter. has been with the company for twelve years and became a supervisor four months ago. Dan. eight of whom are female and two of whom are male. Mary. Mary’s supervisor. approached a co-worker. had a noticeable change in his demeanor. Mary declined. Lori. but told Dan that she was still dating her boyfriend. sometimes making it difficult for Mary to get her work done. Prior to these two decisions. Mary has worked in her position for approximately eight months and finished her probationary period with the company two months ago. an investigation now must address whether the harassment occurred and also whether or the employer failed to adequately investigate the allegations once they were brought to management’s attention. the United States district courts did not have a uniform basis for making rulings. we represent Mary.
Dan pulled out a sheet of paper from the file that had yellow highlighter covering half the page. fearful of getting in trouble. Dan singled out Mary’s work as something that the other workers should emulate. there was a phone message from Dan. if the supervisor was the harasser. Under the policy. Mary called the human resources department and left a voice mail for someone to call her at her work extension the next morning. and that the HR Department would take 137 . When Mary arrived at work the next morning. the employee is to complain to the human resources department. but also because Dan had begun telling co-workers that they were having an affair. Dan winked at Mary as he made his comment. Mary decided to try to avoid Dan. at a staff meeting. to Dan’s conduct at the meeting. upset by what was happening. some of Mary’s coworkers approached her and asked her if she was having an affair with Dan. Dan offered to come over to Mary’s house to nurse her back to health as “only a real man can”. Mary told the person what had happened and that she needed to find out what to do. However. sent Dan an E-mail that she was sick and had to leave early. Dan was waiting for her at her desk. in part. Mary determined that she was off by only three cents.had also made advances to two other girls. who sounded intoxicated. After reviewing the calculations.” Mary. He was holding a file that Mary had been working on. Dan left his home number for Mary to call. Dan told Mary that she “had screwed up” the numbers and she needed to redo all of her calculations. After the meeting. went right to work. Mary. the co-workers told Mary that it was due. When Mary arrived at her home. The friend told Mary to complain to the company about Dan’s behavior. both of whom ended up quitting their jobs because of his behavior. Mary stopped by a friend’s workplace on the way home and told her what had happened. Mary received a telephone call from someone in the HR Department in response to her message the previous day. Mary was told to not talk with her co-workers about what had occurred. causing Mary to blush. Mary recalled from her training that the company has a written policy on sex harassment that requires the harassed individual to complain to their direct supervisor. When Mary asked why they thought that. and that she had better get the work done by lunchtime or he would have to “write her up. hoping he would direct his attention towards someone else. While working on her calculations.
In disbelief. Dan again confronted Mary with work that he alleged needed to be redone. Mary will be able to identify witnesses and documents necessary to prepare the investigation. the company decided that it was best to transfer Mary to the accounts payable department. and if her work did not improve she had better think about another line of work. however. friends and previous allegations of similar inappropriate conduct by Dan. Mary re-examined the figures on the worksheet and found that there was no discrepancy this time. Mary quit her job. Developing an Investigation Plan The above scenario was somewhat long and detailed. your investigation plan will include interviewing and obtaining a statement or declaration from Mary’s co-workers who are not employed at a supervisory level. He claimed that Mary had a crush on him and that she had created these allegations after Dan rebuffed her advances. However. In reviewing Mary’s narrative you will find references to co-workers. that Mary was honest while Dan was dishonest in what he reported to the employer. You will want to interview Mary’s friend to help document. Mary also indicated that she spoke with a friend about Dan’s conduct. After hearing what Dan had to say. Dan told Mary that he was putting her on a work improvement program. The co-workers told Mary that Dan had not starting looking at their work any more closely than he had previously. Mary called the HR Department representative. and was told that Dan had denied Mary’s allegations. through what is referred to as a prior consistent statement. Mary telephoned a local attorney to whom she had been referred by a friend. The attorney helped Mary file a charge with the local EEOC Office. You also want to locate and interview the two former co-workers of Dan’s who allegedly left the company 138 . this is ordinarily how the information is presented during a client interview. Mary asked several of her co-workers if Dan was closely checking their work. The next day. two of her co-workers told Mary that Dan had started publicly criticizing the quality of Mary's work.care of the problem. Therefore. but was told that there was no need to. Mary asked the HR representative if HR had spoken with any of Mary’s co-workers about what they had witnessed. The client interview will be the most important element in organizing your investigative plan.
When practical. Since Dan has claimed that he rebuffed Mary’s advances.due to Dan’s advances. In addition. Expect to spend a long time with Lori. which means conducting a background investigation in search of honesty and veracity issues. you will need show that it was Dan that pursued Mary. you are better off to cold call most witnesses at their home. Finally. cover with each witness any public statements that Dan made about the poor quality of Mary’s work after having singled Mary out for her good work. especially if the witness observed the wink. the co-worker who heard about the two employees quitting due to Dan’s inappropriate behavior. both in general and directed towards Mary. you should cover any sexually oriented comments made by Dan. you will need to attack Dan’s credibility. you want to cover with Lori her conversation with Mary about Dan’s 139 . Conducting the Investigation Mary’s rapport with her different co-workers can be used to determine which coworkers to cold call at their homes and which to set up an appointment with in order to interview them. and also shows that Dan was trying to imply that there was a relationship with Mary. Lori should be able to get the names and contact information for these two women from her friends who worked with them. Also. Ask the witnesses if they saw Dan around Mary’s work area more times than appeared necessary for Mary to get her work done. Review with the witness Dan’s public praise of Mary’s work. in order to reduce the chance that a witness will become very reluctant to be interviewed. Mary can help you to make contact with the witnesses who she thinks will be supportive. You will need to collect and organize company policies and correspondence that pertain to this action. If need be. Witness Interviews During your interview with the witness. since it shows that Mary was an exemplary employee. You will establish with the coworkers that their work was not subject to more scrutiny when Dan began overly scrutinizing Mary’s work.
Public Record Research Next. The witnesses may be called at a later time for a deposition. Close out your interview process by locating and interviewing the two former employees identified by Lori.conduct towards Mary. Be sure to identify any individuals from court pleadings who should be interviewed as well.” should satisfy the legal requirements of 28 U. Look for instances where the opposing party alleged a material false statement or where Dan provided information that you have learned was false. Prior inaction by the company.S. as well as any information that could be used to attack Dan’s reputation for honesty and veracity. such as “I declare under penalty of perjury that the foregoing is true and correct. Also. you should conduct a full background investigation on Dan. You should also check state and federal courts for lawsuits against the company 140 . It is easier to get the hand written statement at one sitting with a witness than to come back. bankruptcy petitions and own recognizance release applications require providing information under penalty of perjury. such as suits based on loan defaults. This also serves as a prior consistent statement. is very helpful in this type of case as it shows that employees could not reasonably rely on the company to stop the illegal behavior. You will need to check both state and federal court indices for cases where Dan is a defendant. looking for any previous lawsuits related in nature. or you may just want to obtain a declaration or statement from the witnesses. which can be used to buttress Mary’s credibility. however. Section 1746 governs the requirements for unsworn declarations under penalty of perjury for use in federal court. ask the employees if anyone from the company had interviewed them about the allegations. when notified of bad behavior. and if they notified anyone at the company. many attorneys prefer a typed declaration. A handwritten statement done under penalty of perjury. Executed this ____ day of ____. as it looks more professional. Code Section 1746. where most employment cases are litigated. Make sure to cover the inappropriate behavior by Dan directed towards the two ex-employees. Some court pleadings. 2_____.
you should arrange to get a copy of the message left by Dan on Mary’s answering machine or photograph the screen of any device that Mary has that identifies incoming calls. Being able to show. who could be interviewed about the manner that the company handled these types of complaints and the reasons for its actions. Therefore. While you cannot interview current human relations employees about this matter. claiming that your client was transferred for reasons other than the true reason. you may be able to find a former employee. especially those that alleged a failure to respond to harassment complaints brought to the company’s attention. through your interviews. See the chapter thirteen for more information on determining the adequacy of an investigation. what questions they asked the witnesses and how they evaluated the credibility of each person. that the negative information was readily available goes a long way towards attacking that defense. as a defense. Companies may also come up with a pretext to justify any adverse job actions. can be done through witness interviews. that it has investigated the allegations and found them to be unsubstantiated. You will need to show that the company’s stated reason was created to try to protect the company from a potential lawsuit rather than the real reason for the transfer. you will need to assess who the company’s representatives interviewed. This. did they place greater significance upon one person’s statement than upon another’s statement when there was no basis for that discrepancy? In addition. too. companies have been known to ignore information that contradicted what they wanted to hear. Assessing the Adequacy of the Employer’s Investigation At some point the company may try to raise. Lastly. For example. you may also have to investigate their investigation. Make sure to confer with the attorney to check your jurisdiction's parameters on what types of former employees may be contacted since it varies from state to state. 141 . To do so.claiming discrimination or harassment.
CHAPTER TEN CONDUCTING A CIVIL RIGHTS POLICE MISCONDUCT INVESTIGATION There have been several high profile cases regarding excessive force and other violations of civil rights by some law enforcement personnel. In addition. While difficult to prepare. this type of litigation has led to changes in some police departments that have improved community relations and allowed the agencies to better serve the public. several communities now have civilian review boards. which allow for public input in the way of a separate investigation. Civil rights litigation allows an individual or organization to bring a case against the officers involved. OVERVIEW ● Fact pattern ● Creating the investigation plan ● The client interview ● Obtaining records and interviews of medical personnel ● Neighborhood canvass ● Additional interviews ● Public record searches 142 . and sometimes the agency the officers work for. in the capacity of a citizen attorney general.
At that point. the vehicle behind Bill’s car turned on lights and sirens. Thus. In addition.Problems Associated with Conducting a Civil Rights Investigation The vast majority of law enforcement officers are decent and honest people who want to do the right thing. slowed down and pulled over. having heard stories of carjacking in the neighborhood. instead the car began tailgating them. some insurance entities created to defend officers in civil suits as well as some police unions. It is not unusual to find that witness testimony has been mischaracterized to make it appear to support the officers involved. Sample Scenario Our sample investigation concerns Bill. The lights were distant at first. Bill and Tony returned to their car and while driving through a “bad” neighborhood on their way home. violations of civil rights typically occur in high crime areas where ordinary citizens genuinely need police protection. Finally. there are still some departments that believe it is better to protect rogue officers than to punish them. After one beer. attacking the victim is easy to do since some civil rights victims have criminal histories or come from society’s underclasses. the lights were right behind his car. but within moments. As a result. They stopped off for a beer with a couple of teammates after the game. who was driving home from a night softball game with his brother Tony. there can be a reluctance on the part of area residents to testify out of fear that the police will stop responding to emergency calls to the area. pursue an out and out attack upon the victims of these police abuses. Two officers got out of the police car with their weapons drawn yelling at Bill and Tony to put their arms out of the window. However. Bill. and this will leave the criminals in charge of their neighborhood. Bill now realized the vehicle was a police car. and pursued Bill’s car. Bill noticed a pair of headlights in his rear view mirror. Often. The car behind him did not try to pass Bill’s car. driving right behind Bill’s car. they may use their own investigative process to exonerate officers who violate the civil rights of the public. Moments later two other patrol cars arrived on 143 . sped up to get away from the vehicle tailgating him.
accompanied by two officers. as witnesses can be transitory and may move within a short time following the incident. Tony was repeatedly struck in the leg and shoulder with a baton. You will need to conduct a door to door canvass in the area where the incident occurred. A fourth officer ordered Tony out of the vehicle. The medical release should be worded to authorize “any treating medical personnel” to be able to talk with the clients’ representatives. Bill. An officer approached Bill’s car with his weapon drawn and opened Bill’s car door. The client interview serves as the starting point for developing your investigation plan. Tony collapsed from the pain and lay motionless on the sidewalk. The release allows you to obtain a copy of the ambulance run sheets and medical records from the hospital. Once on the ground. Both men were charged with battery on an officer and unlawful flight from an officer. was transported to the hospital. At that point. an ambulance came to the location and the paramedics treated both men at the scene. and yanking Bill out of the car by his hair. A short while later. You will also want to interview all of the treating medical personnel. Investigation Plan With a civil rights case the sooner the investigation is begun the better. and Tony complied. The charges against Tony were dismissed shortly after the incident. Two other officers joined the first officer in pummeling Bill. exhibiting behavior consistent with someone high on methamphetamines.scene. At the client meeting you should photograph the client’s injuries and obtain a medical release. In their police reports the officers indicated that Bill and Tony struck them first and were out of control. Bill was found not guilty in a jury trial. the officer kicked Bill in the head and stomped on Bill’s chest. You may also want to interview people from the bar where Bill and Tony stopped for a beer to show that they only had one beer and were not combative when they 144 . while Tony was released back into police custody where he was transported to the local jail. Tony was hogtied by the officers and remained facedown on the sidewalk. and immediately put his hands above his head. Tony noticed his brother being beaten and yelled at the officers to stop. in addition to producing any documents available. Later.
In addition. you should search for other civil rights cases. The statement should be prepared as a moment by moment narrative that conveys both the physical actions that took place and Bill and Tony’s thought processes during the incident. Be sure to include any indications of permanent injury or physical therapy requirements. Conducting the Investigation Initiate the investigation by conducting thorough interviews with Bill and Tony. You will want to conduct a litigation search on the police officers. you will need to obtain the police reports prepared by each officer involved in the incident to determine what the officers maintain happened during the incident. by the officers. Obtain A Handwritten Signed Statement from Bill and Tony Once Bill and Tony have been interviewed. such as smiling or laughter. 145 . Take photographs of their injuries. and the fact that they did not know the vehicle behind them was a police car until it turned on its lights and sirens. The statements should focus on documenting the fear they felt while being tailgated. Lastly. The statements should also cover the nature and extent of the injuries to your clients and any medical treatment that resulted from those injuries. make sure to document the steps they took to comply with each order given by the officers. You should cover with your clients any comments or physical manifestations. that information should be included in the statement as well. which may have been filed in either state or federal court. handwritten statements should be prepared for each of them to review and sign. In particular. Check your own client’s criminal and domestic relations history as well. and with the attorney’s consent obtain handwritten signed statements from both of them. which demonstrates that the officers were not in fear for their safety during the incident. If your client has never been arrested before.left the bar.
while other companies prohibit their employees from speaking unless they have been subpoenaed for a deposition. Also inquire about any comments made by law enforcement or your clients that could be deemed an admission by a party opponent. Be prepared in advance to hear a lot of “I didn’t see or hear anything”. and your persistence will pay off.Medical Records and Interviews with Medical Personnel The next step should be to deliver the medical releases to the hospital and ambulance services. make arrangements to interview the paramedics and doctors regarding the extent of the injuries. in order to protect themselves from liability. as the neighborhood residents will probably know about the incident through direct observation or word of mouth. One method would be to respond with the “incident between the two guys in softball uniforms and a bunch of police officers”. if a person asks which incident. Once you have received and reviewed the records. Typically. Some ambulance companies allow their personnel to speak with an investigator with only a release. immediately identify yourself and hand a business card to whomever comes to the door. Further. and what their observations were upon arriving on scene. This statement subtly humanizes your client to the witness by describing the incident from your clients’ 146 . After introducing yourself. To increase your chance for success when canvassing. However. however. Keep your explanation general. Neighborhood Canvass Your next step should be to conduct a thorough door to door canvass of the neighborhood where the incident occurred. you need to be able to explain the incident in a manner that won’t immediately cause the person to fear getting involved. it is best to state that you are going door to door because you were asked to look into an incident that occurred in the neighborhood a short while ago. medical personnel. their records are very useful in a civil rights investigation. since the records are balanced in substance. Medical personnel tend to be very straightforward people who entered into the medical field to help people. keep knocking on doors. will often document when law enforcement blocks treatment or transport.
One thing to remember when canvassing is that it is important to sort out whether the person directly observed the incident or heard about the incident from someone else. It is critical at the onset of your canvass that you get cooperation so that you can determine what corroborating information exists. and you will only have one opportunity to canvass. and is an appropriate approach to take when contacting possible witnesses. written on the front of the card. you can focus on those addresses where no one was home originally. Get signed statements from the team mates who were with them. When someone calls in. which document that Bill and Tony had only one beer before they left the bar and were not acting aggressively. when they left the bar. a person will cooperate. if you do get a second chance to go out to the area. if you have a favorable witness and you think he or she will sign a handwritten statement. If possible. thanks”. On occasion. but the more responses you have the better a picture you will develop as to what occurred. Of course. or get the name from another neighbor. make sure that you get their name and address. you should make arrangements to interview whomever your clients had contact with at the bar where they stopped. start writing it up as soon as the opportunity presents itself. during your canvass. Thus. you can cultivate the reluctant witness or the attorney can depose them later. make sure to get that person’s name. you find that no one is home at a residence. That is alright early on. This technique is referred to as “educating the witness”. As you canvass you should write down each address that you go to and document at which addresses you made contact with a resident and at which addresses you did not. you should leave a business card on the front door with “Please call me. You may not get too many calls from this approach. but refuse to give his or her name to you.prospective. address and telephone number. Beyond that. Additional Interviews Once you have canvassed the area where the incident occurred. if need be. If they heard about it through another person. try to get a statement from the 147 . as you can cross-reference the address to get a name. If. and circle your name where it appears on the business card.
you can crack open the door of credibility. However. If you can catch those inconsistencies and prove some of the official version to be false. Typically. Officers often testify in court in uniform because of the symbolism that we all attach to the uniform. just to be aware of anything that might come back to haunt you. which most departments try to avoid. obtain and review all of the police reports prepared by each officer involved in the altercation. officers are pretty good at documenting a consistent story. The reports may contain a variety of supplements. Any indications of an anger management problem can become ammunition in the lawsuit. having certified copies showing that a department knew it had a problem officer can make for bad publicity. they may embellish things. Public Records Searches After you have completed the interview process you will need to conduct a litigation search on the different police officers involved. and can give their opinion about whether your clients appeared to be intoxicated. on occasion. jurors will almost always believe an officer. Prior complaints of excessive force have the potential to serve as notice to the police department that they have a problem employee. Finally.bartender who was working when the clients were in the bar. Failure to correct problem behavior or to remove a problem officer from public interaction has been found by different courts to be actionable. From the time we first begin learning about the different types of people in our world. While at the courthouse conduct a litigation search on your own client. unless given a reason to doubt his or her honesty. check for restraining orders and criminal filings covering both before and after the officer was hired. 148 . bankruptcy or other financial problems. since bartenders are often trained to recognize an intoxicated person. Additionally. You should also look for things that might cause the officer undue stress such as a divorce. This helps avoid an unwelcome surprise. or you may find little inconsistencies in the different versions. Therefore. Lastly. we are told about the good police do in regards to our safety and security. as even detrimental information can be addressed fairly easily if it is learned about early enough in the process.
Civil rights investigations can be extremely difficult and are often emotionally charged. Prepare yourself thoroughly and document each step of the investigation as you search for the truth. 149 .
nothing generates stronger emotions from witnesses and other parties than being contacted about a criminal matter. but it reflects a situation that occurs all too often in our society. In a criminal case the government must prove its case beyond a reasonable doubt. 150 . Therefore. Therefore. the focus of a criminal defense investigation is directed towards facts that. However. The scenario details the self-defense killing of an abusive boyfriend. The defense does not have to prove the defendant innocent. when proven. OVERVIEW ● The fact pattern ● Creating the investigation plan ● The client interview ● The scene of the crime ● Neighborhood canvass ● Witness interviews ● Public record research The scenario used to demonstrate how to conduct a criminal defense case is somewhat troubling to read. create a reasonable doubt as to the charges alleged. you will often have to overcome very strong resistance from witnesses in order to obtain the information that they possess.CHAPTER ELEVEN CRIMINAL DEFENSE INVESTIGATIONS Criminal defense investigations can be the most challenging and most rewarding. of any type of investigation that you will conduct.
Hearing the gunshot. but hit Ginger across her shoulder with the butt of the gun. upon arrival. Fred fled the apartment before the police arrived. Ginger was treated at the hospital on four occasions for injuries sustained from beatings and missed several days of work because of her injuries. However.The Fact Pattern Ginger had lived with Fred for about 18 months. The neighbors called the police on three occasions after hearing what sounded like a beating in the apartment. He told Ginger that she could not leave him. There had been a series of violent episodes that seemed to get worse with each new incident. Ginger ran towards the phone. You 151 . Fred released the child. The investigation plan will include interviewing friends. you will want to obtain police reports detailing the calls by neighbors that led to the police coming out to the apartment. They had no children together. But Fred arrived home before Ginger and her child could leave. but Ginger did have one child from a prior relationship. Ginger was later charged with first-degree murder. found Ginger still holding the gun. family members and neighbors who were aware of the violence and establishing the medical treatments following the incidents of violence. Different friends and family members drove her to the hospital on each occasion. The Investigation Plan The attorney has decided to approach Ginger’s defense with two goals in mind. Ginger finally called a domestic violence hotline and made arrangements to go to a nearby shelter. The force of the blow knocked the gun out of Fred’s hand. on each occasion. Fred grabbed Ginger’s child and put a gun to the child’s head. In addition. a next door neighbor called the police who. as he decided what she could and could not do. The first is to focus on obtaining an acquittal based upon a claim of self-defense. but Fred got to the phone first and yanked it out of the wall. the second is to build a case for a lesser charge plea bargain should the self-defense argument hit a snag. Ginger picked up the gun and shot Fred once. killing him instantly.
In addition. You may need to obtain the services of a criminalist who can analyze the nature of the gunshot wound and provide an opinion as to whether the shooting was consistent with the planned defenses. which most likely will take place at the county jail.will probably want to interview Ginger’s boss or co-workers to document her absences from work and show that she was otherwise a hardworking employee. will help the criminalist to form an opinion about the killing. in conjunction with Ginger’s statement. you will also need to locate a domestic violence expert who has enough expertise to stand up in court. You will also need a release to document her contact with the domestic violence hotline and verify that she made arrangements to enter a local shelter. and obtain a copy of the autopsy report and toxicology findings. You should also obtain a complete copy of the police report. one for medical 152 . making it extremely difficult for the average person to be released pending trial. including photographs taken at the scene. bring a camera equipped with a flash and at least two rolls of 200 ASA film. Finally. The records should include any medical treatment related to the final altercation with Fred. You will also need to bring two release forms for information. These items. First-degree murder charges typically result in either no bail or very high bail setting. You should also conduct a background check on Ginger to prevent any surprises from interfering with your defense. This may also have a use for any bond hearings that may occur. you will need to review Fred’s autopsy file and photographs. You will also want to obtain a release from Ginger for her medical records pertaining to the hospital visits from the beatings. You will need to conduct a full background check on Fred to look for any patterns of violence in previous relationships that resulted in police contact or the need for restraining orders. You should make arrangements to photograph Ginger to document any physical manifestations of the injuries sustained during Fred’s final attack. Conducting the Investigation In preparation for the initial meeting with Ginger. such as a similar past event that led to the same outcome.
information and one general release to broad enough to cover any other information. Copies of sample releases appear in the Appendix. The Client Interview During the interview make sure to get the names, addresses and telephone numbers of each person that Ginger mentions as having helped her get to the hospital or helped her up following a beating. Get the specific apartment location for any neighbor who assisted Ginger during any of the abusive incidents. Also, try to get the names of the neighbors’ employers or other people that may know the neighbors, since people tend to move fairly frequently. Have Ginger take you through the story slowly and deliberately so that you can get a sense of how she was feeling with each passing moment. Make sure to cover her state of mind, beginning with the decision to call the domestic violence hotline, and keep asking about her state of mind as she tells her narrative. It will also be very important to locate where Ginger, Fred and Ginger’s child were standing within the apartment at different times during the incident. Additionally find out the location of the door and any means of egress in the apartment, and whether Fred stood between Ginger and the apartment door, preventing her from leaving during the incident. Site Visit You will need to go out to the crime scene to photograph the apartment and document its condition. The attorney will probably need to make arrangements for you to gain entry to the apartment to take measurements of the rooms, making sure to include the locations of tables, chairs, sofas and any other items that help to shrink the size of the room down. Fear often escalates in an enclosed space, as the sense of being trapped is greater than if one is in a large open area.
Neighborhood Canvass Once finished with the scene go ahead and canvass the neighbors. If it is not a convenient time for a canvass, accomplish what you can and come back as soon as is practical. If need be, telephone any neighbors deemed critical to the case who you think are sympathetic to Ginger’s plight. Try to set appointments with those neighbors who will be supportive of Ginger. Get the names and apartment numbers of any other neighbors who may be familiar with the incidents of domestic violence between Ginger and Fred. Medical Records You will need to make sure that all of the releases for information are distributed to the appropriate locations, including hospitals, urgent care facilities and any primary care doctors, including Ginger’s OB-GYN. Also, contact the domestic violence hotline to determine the procedures for obtaining the call information. While speaking with a representative of the domestic violence hotline, ask if the faculty knows of any experts on domestic violence who have testified in criminal cases. It may be a conflict to use someone from that organization, but the staff may be aware of other experts. If you are unable to come up with the name of an expert, expand your search. One possible approach is to contact attorneys who specialize in representing domestic violence victims. Witness Interviews Next you should make arrangements to interview friends, relatives and co-workers. Document any discussions with Ginger about the beatings and any fear that she had about being killed by Fred. Also, get descriptions of any injuries, such as bruising, concussions and fractures that they were aware of. You may need to investigate any history of domestic violence within Ginger’s family. Since this tends to be learned behavior it will help a jury to understand why Ginger did not leave Fred the first time he beat her.
Autopsy File and Police Records Once available, review the entire autopsy file, including investigator notes, photographs and toxicology reports. Obtain any documents that are considered public record. You should also prepare a list of all documents contained in the file that will need to be subpoenaed by Ginger’s attorney if you cannot obtain a copy. The police reports are usually provided by the district attorneys office as part of discovery; however, there are times when you should search for the reports independently. While at the police department obtain a copy of any other report that pertains to either Ginger or Fred. Court Records Research Lastly, conduct searches of the court indices at lower level and upper level courts for civil and criminal filings pertaining to either Fred or Ginger. Especially look for domestic relations petitions and restraining orders, which may include allegations of domestic violence. Additional Interviews By this time, the prosecution will have turned over the list of witnesses that it intends to call at trial. You should make an effort to interview those individuals to ensure that there are no surprises. Some of the witnesses you will be able to contact directly while others may have to be interviewed with the DA present. Interview any pertinent people identified in police reports or court filings. Especially important will be any other women who were previously beaten by Fred. The investigation outlined above was fairly basic, and the attorney defending Ginger will undoubtedly have more elements that need investigation. However, this investigation will go a long ways in helping the attorney assess the case against his client and determine the best course of action to take on Ginger’s behalf. Next, we will put together a wrongful death civil investigation on behalf of the family of a woman killed by domestic violence.
In this chapter. In addition. allowing these types of lawsuits to be brought as a tort. Unfortunately. OVERVIEW ● The fact pattern ● Creating the investigation plan ● Interviewing witnesses ● Releases for medical and legal records ● Public record research For a short period of time. a victim’s survivor could bring a cause of action under the Violence Against Women’s Act (“VAWA”). The high profile O. we will cover the investigation of a wrongful death claim when the survivors of a victim murdered during a domestic violence incident bring a lawsuit against the killer. most states have fully or partially abrogated interspousal immunity.CHAPTER TWELVE CONDUCTING A WRONGFUL DEATH INVESTIGATION Auto accidents make up the vast majority of wrongful death claims and we have already covered an auto accident investigation in a previous chapter. that cause of action was struck down by the Supreme Court in a 5-4 vote in which the majority ruled that Congress did not have the legal authority to pass that legislation. Simpson civil case demonstrated the effectiveness of this type of civil action where he was found liable at the civil case even though he was acquitted in the companion criminal case. However. this 156 .J. even if the victim and the killer were married.
type of action is authorized under the Uniform Probate Code when the decedent and the killer were married. Unfortunately, there are times that do to problems with the law enforcement investigation that this will be the only manner to hold the killer responsible for his actions. There are occasions when this type of action may be the only manner that a killer may be held responsible because of difficulties in law enforcement investigation. The Scenario Susan, a twenty-four year old nurse, was killed late Friday night. Her boyfriend George, a plumbing contractor, ran her over outside of a friend’s house where they had been to a party. George had an automobile policy with a one hundred thousand-dollar policy limit. Earlier that evening George had beaten Susan publicly in the parking lot of a bar. At the party two of Susan’s friends told her she needed to leave George before he killed her. Susan confided to her friends that she had gone to a lawyer to get a restraining order, but decided to wait until after the weekend, when she could stay at a relative’s home in another part of the state. Susan, certain that George would ignore the restraining order, feared that the police would not be able to get to her in time once he came looking for her. Susan and George began arguing at the party, at which time Susan left. After a few minutes, George came out to see Susan talking with a friend who once called the police and reported George for beating Susan. The friend had also taken Susan to the hospital on several occasions after George had beaten her. George grabbed Susan by the arm and pulled her towards his car. However, Susan pulled away from George and walked around the corner. George followed behind Susan, yelling at her to get in his car. A few minutes later, someone ran inside the house and told the host to call 911. Upon arriving at the party, this person observed George sitting in the roadway holding Susan, who was bloodied and not breathing.
Creating the Investigation Plan Unlike other types of investigations where the client interview is used to develop the fact pattern, a wrongful death case requires you to access different sources of information in order to create the investigation plan. In this situation you will need to rely upon the victim’s friends and family members. You will need to identify and locate as many people as possible from the party. Especially important will be the two friends who talked with Susan just before her death. You should establish the beating that took place earlier in the evening at the bar. You will need to obtain Susan’s medical records and interview anyone who ever took her to the hospital. It is necessary to obtain any police records documenting the violence between Susan and George and conduct background investigations on both of them. Verify that Susan did contact the lawyer to seek a restraining order and to that she contacted her out of town relative to make arrangements to stay there. In addition, you will want to canvass Susan’s neighbors to document any incidents of domestic violence including those times when the police were not called. Conducting the Investigation Work with the victim’s friends to identify and locate as many people as possible who were present at the party. Interviewing Friends Arrange to meet with the two friends who were with Susan at the party. Have them take you through a narrative of the events that they observed during the course of the evening. Make sure to cover Susan’s level of intoxication, as the defense may attempt to lay blame for her death upon her level of intoxication. Pin down any arguments or incidents that evening that appear to be related to domestic violence. Ask what prompted the discussion about Susan needing to leave George and if Susan made any affirmative decision about leaving George prior to leaving the party. Make sure to document that
Susan turned and walked away from George as he tried to get her to leave with him. Most important of all, try to pin down that George followed Susan and tried to get her into the car, and that she continued to walk away from him despite his demands to get into his car. At some point, the services of a domestic violence expert may be needed to demonstrate that the most dangerous point in a domestic violence relationship is when the abuse victim starts to leave. In this case, George refused to let Susan leave him and he killed her because she was in the process of leaving him. This will help to show intent, which is not a necessary element in a civil case, but may help to motivate a jury to award a larger amount. Along those lines, you will need to interview the out of town family member to verify that Susan had made arrangements to stay with that relative. Make certain to cover with the relative why Susan did not go up there immediately as the expert will need this information. Susan had told these two friends about the beating earlier in the day in the bar parking lot. Were either of these friends present when the beating occurred, or did they learn about it through Susan? If so, did she tell them if anyone else observed the beating, such as the staff at the bar? Further, did Susan have any visible injuries from the beating, or did she complain about any injuries from the beating? Finally, cover the friends’ knowledge of prior incidents of abuse, either incidents that they witnessed or visible injuries that Susan attributed to a beating by George. If the friends called the police to report George, find out what the outcome of that incident was, and who responded to the call. Were there other incidents in which the police were called out to Susan and George’s residence? Did either friend ever take Susan to the hospital or urgent care? If so, find out when that occurred. Interviews with Witnesses to Medical Treatment Following Prior Beatings It will be critical for you to try to locate each person who took Susan to get medical treatment following a beating. You will need to match each occurrence to specific injuries documented in the medical records. For example, if she had received a black eye on one occasion and a broken wrist on another, make sure to identify and interview the
from the list provided by the friends. try to get signed statements while you are at their homes. you may be more successful with the door staff. It is doubtful that you will get much help from the bar staff. prioritize and interview people who were at the party and observed what took place. Additional Witnesses to Domestic Violence Incidents If you have not built up sufficient evidence showing a pattern of domestic violence. if no bar employees were identified. so don’t be insistent it if they refuse.person who transported her for each specific injury. If you sense that you will only get one chance with these people. that the injuries resulted from George’s beatings. if you can approach them without the bar manager seeing you. domestic violence victims often lie to medical caregivers about the cause of their injuries. Often people are reluctant to give signed statements in this type of matter. you will have to canvass the bar and parking lot at the approximate time the incident occurred. Further. It may help to have another person accompany you to these interviews in order to serve as a witness as to what you were told. 160 . Bar owners tend to quash interviews with their employees because they fear that the bar may be sued over an incident that occurred at their establishment. be very up front about who you are and let the witnesses know that you have been asked by Susan’s family to look into the circumstances surrounding her death. Make sure you take good notes and immediately prepare summaries of the interviews. Interviews with Party Goers Finally. through admissions by Susan to her friends of others. make in person cold calls to the most important people. However. Contact anyone identified by Susan’s friends as having knowledge of the parking lot incident. you will need to document. While conducting your cold call. you will need to pin down the incident in the bar parking lot. however. Therefore. Working from your list. try to get contact information for the employees so that you can interview them away from the bar. If the friends know some of the bar employees.
or even. keep working down the list of witnesses from the party. However. Any felony conviction within the past ten years can be used. Speak with Susan’s primary care doctor to check for any indications of domestic violence. you can probably do most of those interviews by telephone. Ideally. the personal representative of Susan’s estate can usually sign releases for medical and other information. At this point you will need to take stock of the case you have built. Also. Try to pin down when the neighbors observed these vehicles and which services were present. although this will be more effective if the victim lived in an apartment rather than a house. canvass Susan’s neighbors for any awareness of previous domestic violence. you will need to do a thorough background investigation of both George and Susan. other boyfriends who abused Susan.Next. forgery. get a copy of the file and interview the staff person who worked with Susan. and possibly. 161 . as can any incident involving dishonesty such as fraud. Make sure to ask about the presence of police or emergency service vehicles at the house. Get copies of all police reports and ambulance run sheets pertaining to incidents involving George or Susan. Use the releases to get a copy of all of Susan’s medical records. Ask about instances of screaming and yelling at the residence. you will be able to locate previous victims of George’s abuse. You will also need to look for civil and criminal filings pertaining to George that might help to assess his honesty and veracity. including urgent care and emergency room visits. you will need authorization to speak to the attorney who Susan approached about the restraining order. Releases for Medical and Legal Records Next. If possible. Domestic violence is something of a learned behavior and often repeats itself in relationship after relationship. If you need more information. Public Records Research Lastly. providing false information on loan applications. embezzlement. Check to see what incidents Susan identified as the basis for the restraining order application.
CHAPTER THIRTEEN INVESTIGATING THE INVESTIGATION As previously mentioned in the chapter on employment investigations. assessing investigations is important matters such as negligent retention and hiring. whistleblower actions. assessment of government investigations into abuse. there is an increasing need to assess the adequacy of an investigation conducted by the opposing party. OVERVIEW ● Creating an investigation plan ● Assembling pertinent information ● Witness interviews ● Investigating the investigator ● Public records search ● Compare and contrast the investigations Types of Cases that Call for Assessing the Adequacy of an Investigation In addition to employment matters. the standard for determining the adequacy of an investigation is whether an unbiased 162 . neglect and exploitation in residential facilities and foster care programs. In general. and premises liability actions. The theory behind the assessment of an investigation lies with the duty an entity has to investigate and correct a problem once it has been brought to its attention. law enforcement’s failure to investigate in situations covered by a statutory duty.
163 . Conducting the Investigation The client interview will be the place to begin the investigation. Except in a wrongful death case or a premises liability case. In order to subpoena it is necessary to know the witnesses interviewed. you will need to subpoena all documents pertaining to the opposing party’s alleged investigation. by comparing and contrasting the results of the two different investigations. followed by an independent investigation of the claims and. reasonable effort to determine if a violation has occurred.e. The first part of the plan is to ascertain what information was brought to the opposing party’s attention. recordings and reports. and thereafter. notes and summaries of all interviews. to use the information obtained during the investigation to remedy what needs to be corrected. i. Creating an Investigation Plan The investigation plan will be developed to establish that the investigation was not competently conducted to confirm that the problem actually occurred. witnesses identified but not interviewed. complaint forms filled out. the client will be able to identify relevant witnesses and enumerate documents that should have been utilized by the opposing party during its investigation. the client should be able to assist in providing information as to the opposing party’s awareness of the problem. including specific individuals who were notified directly about the issue. documents reviewed. You will want to depose the person responsible for conducting the investigation. Assemble the Available Information This phase of the investigation will depend upon what stage of the litigation is at the time you commence your investigation.. In addition.investigation was conducted. pre-discovery or discovery. If discovery has already begun. finally. with a good faith. or that the investigation was intentionally biased to achieve a favorable incorrect result.
Be sensitive as to whether the investigator minimized negative information and concentrated upon information supporting his client’s position. Witness Interviews Based upon the information developed through the client and documents that you have obtained assemble a list of witnesses to interview. Conducting Your Own Investigation To assess the adequacy of the opposing party’s investigation. If you are still in the pre-discovery phase. Prioritize the witnesses. You will also need information to create a chronology of the investigation. since some of the witnesses may be supervisory level employees or agents of the opposing party.along with the findings and recommendations of the investigator. During the witness interview. in addition to covering the fact pattern of the incident under litigation. Include any opinion statements made by the investigator which might demonstrate his lack of impartiality. such as police reports. Find out how receptive the opposing investigator was to damaging information about the other party. beginning with the witnesses who possess the most information about the subject of the investigation. you will need to ascertain whether the witness was interviewed as part of the investigation and reconstruct the questions asked during that interview. You may not be able to contact all of those interviewed by the opposing party. you will need to assemble information through the client interview and public records. regulatory documents and lawsuits. Investigate the Investigator Make sure to evaluate the skills and experience level of the other investigator to determine if he could handle the complexities of the investigation. you will need to conduct your own investigation to create a basis to evaluate the opposing investigation. If you have access to 164 .
However. Some things to consider while assessing the investigation include the following: ● Did the investigator interview all pertinent witnesses? ● Did the investigator ask all critical questions that needed to be asked? ● Were the questions asked in a manner designed to elicit a specific response? ● Did the investigator review all pertinent documents? ● What approach did the investigator take when assessing the information? ● Did the investigator add editorial spin in order to downplay some information while playing up other information? ● Did the investigator fairly assess the credibility of the parties and witnesses involved? ● Did the investigator show indications of pre-determining the outcome of the investigation? ● Did the investigator’s report appear to follow a specific theme that might later be used by that entity as a defense? ● Was the investigation carried out in a timely manner from start to finish? This list of issues to evaluate is by no means exhaustive. there will be case specific items that you will want to assess that are not included above.his resume or CV. you should double-check the information provided to be certain that it is correct and accurate. Focus on any information that reflects upon their honesty and veracity. Any dishonest information can be used to attack his credibility. Public Records Search You will want to conduct a public record search on your client as well as the wrongdoer. and the investigator who handled the investigation. Compare and Contrast the Information Once you have completed your own investigation you will be able to assess the adequacy of the opposing party’s investigation. this list will help you adequately assess the opposing party’s investigation and challenge it if flawed. 165 . unfavorable witnesses. the business entity.
SECTION THREE CASE ORGANIZATION 166 .
reports. Which approach you chose will depend upon the size and complexity of your case. investigators’ files need to be portable. at any given time. you will be able to locate specific information in your file. All this information will have to be organized in a readily accessible manner so that. However.CHAPTER FOURTEEN ORGANIZING THE INFORMATION The final section covers how to organize a case file so that you can effectively locate all of the information you have developed quickly and efficiently. OVERVIEW ● Document organization ● Forms and checklists ● Keeping track of time and expenses There is never a guarantee as to how your investigation will turn out. you will have to organize a lot of paperwork during the course of your investigation. diagrams and possibly photographs. You will need to keep track of notes. public record documents. including scanning documents into a computer file. One thing is certain. therefore. 167 . the following three organizational approaches are paper-based. you can still organize the information in the same manner on your hard drive. If you prefer to work with a computer and scanner. I will also cover how to keep track of your time should you need to do so. There are several options for document management.
checklists.In addition. paralegals. Legal professionals. The oldest documents will be at the bottom of the file. Thus. but when you bill by the hour you have no choice but to make sure you bill for all of your time spent on a file. The Basic Case File For the vast majority of cases. The time sheet should contain contact information for the client. in that it creates a base for fixing future retainer amounts on services you have performed before. court case index and a court case review form. including notes. or legal assistants. public record checklist. These forms include a case assignment sheet. If you have more than two rolls. On the left side of the folder. whether attorneys. You can then insert and remove all of the certified copies into the folder without damaging the copies or leaving them loose in the file. If you anticipate that you will need to obtain certified copies for use in court two hole punch a 9x 12 clasp envelope upside down. You can store photographs in the same manner. if you need to contact 168 . Timekeeping is probably the least favorite aspect of an investigation. do not punch holes in certified copies of documents. and non-certified copies of documents. and place it into the folder with the clasp end of the envelope down at the bottom of the folder. insert a two-hole punch fastener so that all case documents can be two hole punched into the file. you can two-hole punch the envelope provided by the company that processed the photographs. staple in a time sheet for keeping track of your time. should be two hole punched and placed into the file in a chronological order. However. there are several forms included in the Appendix for you to copy and use to keep your file organized and your work on track. you will be able to use a standard manila file folder to organize your materials. For one or two rolls. Time keeping has another important quality. have to keep track of the time spent working on a specific case. reports. you will not need to remove any documents in order to add new documents as they are generated. investigators. There are also forms included that should help you to keep track of the time you spend on each aspect of your investigation. correspondence. Therefore. you can insert the photos into a clasp envelope as described above. On the top of the right hand side of the folder. Each document.
labeling the tabs in pencil. 169 . certified copies of documents and photographs. this allows you to easily retrieve specific items obtained during a lengthy investigation. As an alternative. a 1” loose leaf binder is an excellent way to organize investigation materials. simply make an extra copy of the document and place one copy in each section. You can use the sample time sheet form or you can tailor the time sheet to meet your needs. A binder allows you to separate your materials by type of document or by subject matter. you can give each subject his or her own section. Any notes and documents that pertain to a specific subject are filed within that section. A 1” binder requires that you three-hole punch your documents along the left margin instead of using a two-hole punch. you will want to organize your material differently. If information pertains to more than one subject. You should also create a manila folder when using a binder. as you need for each case. you can chose to organize your binder by the different subjects which you are investigating. Generally. correspondence. co-conspirators and witnesses. police reports. as you still need a place for your time sheet. For example. For a medium size case. simply erase the original title and write in a new title. which allows you to keep the manila folder with the binder at all times. you will have the telephone number handy. where you have to background informants. reports and interview summaries. Most binders have pockets. If you need to change a category. depending upon the type of investigation. and. a section for documents obtained during the investigation. Unlike a manila folder. you will have sections for your notes. if you have a large investigation to conduct or will be collecting a large amount of documents. a binder allows you to insert and remove documents from anywhere in the binder. However. The Binder The manila file folder will work well for most investigations.the client while out in the field. in a criminal defense case. Use index tabs to divide the binder into sections.
you can also organize different manila folders for each subject of your investigation.The Binder and the Expansion Folder For a very large case. 170 . The expansion file folder is easy to carry in case you need to bring all of your materials to a meeting. Thus. Also. every person that you are investigating would get his or her own manila folder. Similar to organizing a binder for a medium sized investigation. you may find it useful to utilize different types of forms to ensure that you complete all of the work that you need in order to finish your investigation. Alternatively. A copy of every public record or witness interview that pertains to that specific subject will be placed into their file folder. create a separate manila folder for the different types of documents that are collected during the course of the investigation. There are a variety of forms that you can use to assist in keeping yourself on track during your investigation. you can create a separate manila folder for documents provided by the other side during litigation. Blank copies of these forms are included in the Appendix of the book for you to photocopy and use during your investigation. These organizational approaches can be tailored to meet your specific needs. In this situation. and one for each of the different types of public records that you collect during the course of your investigation. the binder should store your to do lists. you can also use an expansion file folder to organize the investigation. The goal with any organization system is to be able to retrieve the information you need quickly and efficiently. in addition to the binder. notes and reports. as there is no need to carry around a large amount of documents during the day to day course of your investigation. Forms To keep your work organized.
Public Records Checklist A Public Records Checklist is especially useful for conducting background investigations. You may also wish to add a section providing a visual reminder that you have completed the search. date filed. you can look at the form to decide when you need to place a follow up call to that agency. and a section for notes. Case Summary Form For each case you review. for example 1990-present. This form should include a section for the 171 . You may also wish to mark “yes” or “no”. Case Search Because litigation investigations rely heavily upon court case research. such as “dropped off request on 10/16”.The Assignment Sheet The Assignment Sheet is a document that has space for you to write down each of the tasks that you have to perform. This form will help ensure that you do not forget to accomplish specific tasks. you may wish to use a Case Summary Form to ensure that you document all of the pertinent information. This form allows you to write down each case you found while indexing a subject’s name. the specific court where the file is located and a section for noting if you have reviewed the file. as you will not search each type of record in every situation. There is a section for indicating when you completed that assignment and to write any notes about the task performed. It lists a variety of information sources that you will want to use during your research. This form becomes a master case list. you may wish to create a Case Search Form. For example. including the case number. It also allows you to track elements of the investigation that need follow up. It should have a section to document the time period covered during your search. if you faxed a request to a government agency.
However. it is a good idea to make a hard copy of all of the information in your PDA so it can be entered into a specific case folder. the plaintiff. while the other copy is blank for you to photocopy and use for your own needs. This form allows you to write down specific start and stop times for each activity worked on each case. Having Daily Time Sheet handy allows you to make certain that each call or activity is logged and billed to a specific case file. you will get calls from people involved with different cases you are working on. This form allows you to document the date you performed a specific activity. you may also want to use a Daily Time Sheet if you are working on several different cases. 172 . One copy includes sample entries. Time Sheets If you need to keep track of your time and expenses on a case. the date filed.case number. Often. a large area to summarize the information learned by reviewing the file and a section detailing the last document entered into the file and the date of entry. For a PDA you can download software. I bill in tenths of an hour. the defendant. You can also use a computer or Personal Digital Assistant (“PDA”) to keep your master log up to date and record your time. The PDA is compact and easy to carry and performs essentially the same function as a paper driven system. which synchronizes with a desktop computer. the best way to do that is with a File Time Sheet. In addition to a File Time Sheet. during the course of a workday. while other investigators may bill in quarter hour or half an hour increments. telephone numbers for the attorneys. and the time it took to complete the task. The time sheet should also include a section for mileage and for expenses. You will find two different copies of each type of time sheet in the Appendix. the court location. the attorneys representing both parties.
Often. new leads will open up as you follow your path. above all. in writing this curriculum. I hope that the book has achieved this goal. as the information will not come to you on it's own. You must be able to follow those new leads until they are exhausted. Remain flexible and.CONCLUSION It was my intent. 173 . it will be very important for you to remain flexible and open to the information that you learn. Investigations are seldom linear in shape. persistent. There are times that the leads will turn into dead ends. Good Luck. As you conduct your investigation. to demystify the process of investigation so that anyone interested in conducting a litigation investigation would have the fundamental knowledge for tackling such a project.
APPENDIX 174 .
SAMPLE DOCUMENTS AND FORMS ● ● ● ● ● ● ● ● ● ● ● ● ● Signed Statement Chronological report Topic based report Open records request letter Subject profile worksheet Court file review report Sample release form Assignment sheet Public records checklist Case Search Case summary File time sheet (sample and blank) Daily time sheet (sample and blank) 175 .
Storm observed as a city operated bus that was in the left turn lane of the eastbound traffic lane for Fourth began to make a left turn to head northbound on Main. but the light does not have a left turn arrow for traffic traveling on Fourth. The front of the Toyota struck the bus near the front door of the bus that is used by the passengers to enter the bus. At the same time. We believe that she will make a good witness appearance. Storm observed as a white Toyota four-door. She is alert. approached the intersection. Main runs north-south and has two lanes of traffic and a left turn lane in each direction. The Toyota did not have an opportunity to implement any defensive maneuvers before striking the bus. Thank you for the opportunity to be of service to your firm. expresses herself clearly and has a good recall of the accident. 2002 we obtained a signed statement from Mary Storm at her residence located at 100 Witness Circle. driving in the left lane of the westbound lanes of traffic on Fourth. The Toyota rotated slightly to the left after impact and came to rest in the middle of the intersection. Albuquerque. Please advise if you wish for further investigation in this matter. It was approximately 7:30 AM. RE: Comments and Conclusions: We believe that this completes our investigation in this matter. Mary Storm was standing on the northeast corner of the intersection of Main and Fourth. She did not know if anyone else was injured in the accident. which is 35 MPH and was only a few car lengths out of the intersection at the time the bus began to turn. Storm believes that the driver of the bus was at fault for failing to yield to the Toyota who had the right of way. At the time of the accident. 176 . The bus continued through the turn and pulled to a stop along the eastside curb of the northbound lane of travel on Main. the weather was clear and the roads were dry. New Mexico (505) 555-5555. Storm called 911 and ran over to the Toyota where she observed a female passenger in the Toyota who was bleeding from the head and complaining of back pain.(Sample Chronological Report) RE: Mary Storm: On May 13. Fourth runs in an east-west direction with two lanes of traffic and a left turn lane in each direction. The Toyota was traveling at approximately the posted speed limit. There is a traffic light at the intersection. RE: Witness Evaluation: Mary Storm is a thirty-nine year old female who works as an office manager at an architecture firm. while waiting for the traffic light to change so that she could walk across Fourth enroute to her office.
177 . Albuquerque. Opinion as to the Accident’s Cause: Storm believes that the driver of the bus was at fault for the accident as he failed to yield to the Toyota that had the right of way. New Mexico. Fourth runs in an east-west direction with two lanes of travel and a left turn lane in each direction. Main. Intersection Layout: At the intersection with Main. 7. 1. Her telephone number is (505) 555-5555. Weather Conditions: At the time of the accident. The Toyota rotated to the left upon impact and came to a stop in the middle of the intersection. She also observed a White Toyota four-door that was traveling. runs in a north-south direction with two lanes of travel and a left turn lane in each direction. 6. The Toyota was only a few car lengths out of the intersection at the time the bus began to make the left turn. at the intersection with Fourth. westbound on Fourth in the left lane. The front of the Toyota was heavily damaged. Background: Mary Storm was walking to her office at approximately 7:30 AM. 8. Storm had no further contact with any of the parties involved in the accident. Storm did not know what if any injuries were sustained by anyone else in the accident. 3. at approximately the speed limit. 2. but no left turn arrow for traffic traveling on Fourth.(Sample Topic Based Summary) INTERVIEW WITH MARY STORM On May 13. Accident: Storm observed as the city operated bus that was traveling eastbound on Fourth started to make a left hand turn to head northbound on Main. The front of the Toyota struck the bus at approximately the front door area of the bus that passengers use to get onto the bus. Witness Appearance: Same information as the sample chronological report. the weather was clear and the streets were dry. Comments and Conclusions: Same information as the sample chronological report. 4. when she stopped at the northeast corner of the intersection of Fourth and Main in order to wait for the light to change so she could walk across Fourth. Storm called 911 and went to check on the condition of the Toyota’s occupants. The bus continued through the turn and pulled to a stop along the east curb of the northbound lane of travel on Main. Injuries: The female passenger of the Toyota was bleeding from her head and complained of back pain. 5. 2002 Mary Storm (“Storm”) was interviewed by Michael Corwin at her residence located at 100 Witness Circle. There is a traffic light at the intersection.
I agree to pay all appropriate copy costs.. i. I hereby request to inspect and copy the following public records maintained by your agency: (List records. Thank you for your prompt attention. State 00000 RE: Request for Inspection and Copy of Documents Dear Custodian: Pursuant to the Inspection of Public Records Act. (Please notify me of the total copy costs so that I can provide advance payment if that is necessary prior to your processing this request).e.(Sample Open Records Request Letter prepared on your letterhead) May 13. 2002 Custodian of Records Any Government Agency 121 Citizens Road Anytown. Sincerely. the licensing file of a day care center) Please call me at (505) 298-4451 to let me know when the file will be available for inspection and copying. Michael Corwin 178 .
SUBJECT PROFILE WORKSHEET Subject’s name: ______________________________________________________ First Middle Last Date of Birth: _______________ Social Security Number: _________________ Last Known Address: __________________________________________________ __________________________________________________ When was this address still good? _________________________________________ Last known telephone number? ___________________________________________ What is the source for this information? ____________________________________ Last known employment information: ______________________________________ Last known work telephone number: _______________________________________ Occupation: ____________________ Does this require a license? __________ Is the subject: a witness __________. a defendant ___________. your client _______ A Judgment debtor ______________ What type of matter does this pertain to: ____________________________________ Additional information: _________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 179 .
After the traffic stop. the defendants filed a motion to have the case removed to federal court. In his answer. pat searched and handcuffed him. This is a complaint for violation of civil rights and excessive force filed on behalf of the plaintiff by attorney Sure Shot (505)____________. 2001. the plaintiff was driving in his car and was stopped by Officer Doe who observed that the taillight in the plaintiff’s vehicle was broken. 180 . John Q. The complaint alleged that on September 20. Public v.: CV-2002000. Doe searched Public’s car. Jim Barrister.(Sample Court Case Review Report) RE: Bernalillo County District Court Case No. and hit Public in the back of the leg with his baton after Public questioned why Doe had searched his vehicle. filed on 01/01/02. and that Public attempted to kick him after he finished searching Public’s car. 2002. At the same time. The last document found in the file was an order by Judge Robe on March 3. Doe pushed Public’s face down onto the car. Doe accused Barrister of disobeying an order to remain at the rear of the vehicle. 2002 that granted the removal of the case to federal court. Local Law Enforcement and Officer John Doe. filed an entry of appearance on behalf of the defendants on February 22. Doe ordered Public out of the vehicle and forced him up against the trunk of the car. (505) _________.
ASSIGNMENT FOLLOW THROUGH CASE NAME: THINGS TO BE DONE DONE DATE OPENED: NOTES ANY SPECIFIC DEADLINES? _____________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 181 .
CIVIL DISTRICT-CRIMINAL METRO-CRIMINAL METRO-CIVIL US DISTRICT CIVIL US DISTRICT CRIMINAL US DISTRICT BANKRUPTCY CORPORATIONS BUSINESS LICENSE OCCUPATIONAL LICENSE MOTOR VEHICLE MARRIAGE COUNTY RECORDERS ASSESSORS NEWSPAPER / WEBSITES DATE CHECKED NOTES CASE NAME: SOC #: 182 .PUBLIC RECORDS CHECKLIST SUBJECT: DOB: COUNTY/ STATES TO BE CHECKED: Y N RECORD SOURCE POLICE REPORTS DISTRICT.
CASE SEARCH FORM CASE NAME: Subject Name Case Number Date Filed Court Location Viewed 183 .
Defendant: ________________________ Plaintiff Attorney: __________________ ( ) _____-__________ Defense Attorney: __________________ ( ) _____-__________ Civil or Criminal Complaint for: ___________________________________________ ______________________________________________________________________ Summary of Information Contained in the File: Last Document Filed: ____________________________________________________ Filed By: _____________________________Date Filed: ________________________ 184 .CASE SUMMARY FORM Case Number: __________________ Date Filed: ________________ Court Location: ____________________ Plaintiff: ________________________ V.
FILE TIME SHEET Case Name: Case Number: Date Activity Atty: Phone: Hours Mileage Expenses 185 .
DAILY TIME SHEET CASE ACTIVITY START STOP HOURS 186 .
Corroborating Information: Information that tends to validate or support other factual information. Cross-examination: The act of questioning an opposing party or witness for the opposing party under oath about testimony previously testified to under direct examination by the opposing party’s counsel. Asset Investigation: An Investigation conducted to identify assets of a business or person that can be attached in order to satisfy a court judgment. Civil Rights Investigations: Investigations conducted on behalf of individuals seeking redress against the government and its agents for violation of rights protected by state constitution. Canvass: The act of going door to door in a neighborhood and contacting residents to interview them regarding a specific incident or individual. Criminal Investigations: Investigations that are conducted in order to assess criminal liability rather than civil liability. Court File: The file of record concerning a specific legal case that is maintained by the court with jurisdiction over the matter from which copies obtained can be certified as to their authenticity. Civil Investigations: Investigations conducted to help assess liability for a civil rather than criminal wrongdoing.GLOSSARY Accident Report: Report prepared by law enforcement or drivers involved in an auto accident describing the circumstances of the accident including the parties involved. 187 . injuries. Agent of Service: Person or business authorized to accept service of process on behalf of a business entity. federal constitution and other legislation. Bench Warrant: A warrant signed by a judge or magistrate ordering the arrest of a criminal defendant for failing to appear in court or failing to comply with terms and conditions set by the court. Background Investigation: An Investigation conducted to uncover information that assists the trier of fact in assessing a witness’ or party to the action’s credibility. Cold Call: The act of showing up at the residence of a witness in order to interview him without first setting up an appointment. vehicle damage and citations issued related to the accident.
188 . party to the action or custodian of record that is recorded by a court reporter without a judge or jury present. Good Faith: An honest effort by a responsible party to carry out an official duty. thus. Eleven Amendment: The constitutional amendment that prohibits federal court actions against state governments and against state government employees in their official but not individual capacities. allowing such information to be used without needing a warrant or court order. Felony: A crime that carries a possible sentence of a year or more in prison upon conviction. a witness. Discovery: The formal process during litigation in which one party must provide information to the opposing party including the identity of witnesses. Deposition: The process of questioning under oath. Ex Parte Contact: The improper contact of an opposing party represented by counsel including through surreptitious means for the purpose of gathering information. Expectation of Privacy: Activities or conversations conducted in a private setting in which information learned through listening to or viewing that action cannot be used in a court of law unless that information was obtained through a court order or warrant as opposed to activities or conversations that take place in a public setting. Grand Jury: A body of people summoned under oath by a prosecutor to investigate whether a crime has occurred and to formally accuse a person or entity of committing that crime. by making a written request directly to that agency. documents and factual evidence. except for certain specified exemptions. Employment Discrimination Investigations: Investigations conducted to determine whether an employee was discriminated against in the work place in violation of state and federal laws.Defendant: A party accused of wrongdoing in a civil or criminal action. Freedom of Information Act: Federal legislation passed in 1966 authorizing the public access to federal agency records. Fee for Service Databases: Public record information contained in databases that are operated by private companies where the user pays a fee to conduct a search of those records.
Interview: A non-confrontational process of questioning that allows an individual to provide his account of an incident without being directly confronted over lies. 189 . inconsistencies and inaccuracies stated by the individual being questioned. Minute Order: A court file document prepared by a court clerk that documents that a court proceeding. to impeach contradictory testimony or for settlement negotiations. Investigation: The process of developing information regarding a specific incident or set of circumstances for use by one side or the other in civil and criminal court proceedings. Personal Injury: Civil litigation designed to assess liability for physical or emotional injuries sustained as a result of negligent or intentional acts. for a person that needs to be contacted regarding a civil or criminal court proceeding. Misdemeanor: A crime that carries a maximum potential sentence of less than one year in jail upon conviction of that crime. Own Recognizance: A form of release for a defendant awaiting trial whereby the defendant promises in writing to appear for all court appearances instead of having to post a cash. inconsistencies and inaccuracies. Plaintiff: The party filing the complaint in a civil or criminal action. Homicide: The killing of one human being by another human being. Locate: The process of locating contact information. has occurred and summarizes the results of that proceeding. Interrogation: A confrontational approach to the questioning of an individual regarding his account of an incident where the questioner directly attacks lies.Handwritten Signed Statement: A handwritten statement signed under penalty of perjury detailing a person’s knowledge and belief as to a given incident which can be used to refresh the signer’s recollection at a later date. generally a physical address or telephone number. property or surety bond. Perjury: The act of making a knowingly false or misleading statement while under oath. such as a hearing. Negligence: The failure of a person who knew or should have known that his failure to act in a reasonably prudent manner might cause harm to an individual.
Preliminary Hearing: A criminal proceeding held before a judge to determine if there is sufficient information to show that a crime has occurred and that the accused is the person responsible for committing the crime in question. allowing the case to proceed to trial. thus. Trier of Fact: The judge or jury responsible for making a final determination at trial as to civil or criminal liability. Sex Harassment: A form of employment based sex discrimination in which an employee is subjected to requests for sexual favors or unwanted sexual comments that effects the employees ability to perform her job. Wrongful Death Investigation: An investigation for a civil proceeding designed to ascertain liability for a non-natural death that occurred either accidentally or intentionally. Search Warrant: A court order issued upon a probable cause showing allowing the government to conduct a search for and to secure specified items located on a person or private property. Testimony: The act of providing a statement under oath. Whistleblower: An individual with inside knowledge who reports a crime or other wrongdoing involving a business or governmental entity. Public Record: Any document maintained by a government entity that is available to the public for inspection and copying as governed by state or federal law. restricts a party’s contact with another party where a violation of that order can result in the violating party’s arrest. Restraining Order: A court order issued following a hearing that for safety reasons. Witness: A person who provides testimony under oath. Tort Claim: Bringing a lawsuit against a governmental entity or employee in which the act is waived by statute allowing the entity or employee to be sued for that specific act. 190 .
75. 58 Affidavit for Search Warrant.102 County Courthouse.162 Cross-examination.141 Bench Warrant. 49. 58 Agent of Service. 45.INDEX 28 USC Section 1746. 58 Business License. 172 Bankruptcy Petitions.160-162 Certificate of Assumed Name.97. 153 B Background Investigation.107-108 123-124.167 Criminal Filing. 50-57.149.61. 159.81-83. 125.83. 46 Circuit Court.66.156. 157 Autopsy Report.161 County Assessors Office.50-51. 116-118. 145.72.106 Court Clerk.126.96.36.199. 75. 51.150 Cold Call.141-143. 71. 162.140. 58-59 Bonds.111.151.63 Credibility. 162 Assessing Investigations. 123.140-141.144-148. 132.51-56. 107.126.53. 12. 133 Affidavit for Arrest Warrant. 70 Chapter 11 Petition. 166 191 . 134 Ambulance Run Sheets. 141 A Accident Report.132.16-23. 45-50.121.117-118.128. 130-134 Auto Accident Investigation.144. 66-67 Chronological Summary.114-115. 51 Civil Rights Investigation. 58 Affidavits. 115 CV.120 C Canvass.152. 11. 163 Asset Investigation. 66 Chapter 7 Petition.147.
50.119.166 Hostile Work Environment.62. 50.65-66.103.101-102.54.59-60.96 Ex-Parte Contact. 53.134 192 .71.149 Docket. 51 Fee for Service Database.119. 49.140-141.162 District Court.137 Divorce.188.8.131.52-184.108.40.206 G Grand Jury.99.162 Fictitious Business Statement.34.128. 24.16. 73 Deposition.116. 10-11. 70 Freedom of Information Act.50.107-108. 51.106. 79.65-66. 6.162. 78 Expectation of Privacy.110 Felony.94-95.16.147 Discovery.111.146 Homicide Investigation.101.94-95.141.125. 127 F Fair Credit Reporting Act.115. 136 I Incident Calls. 41.25.63. 80-82.115-116.55. 6.116-117.39. 164-165 Discrimination.136-142 Ethics.106.93 Honesty and Veracity.133 H Handwritten Signed Statement. 56-57 Grant Deed.220.127.116.11 E Employment Discrimination.136-137.156.134. 54.119 Internet.104-108.86.D Death Records.142 Dishonesty.95 Federal District Court. 83-84 Domestic Relations.51. 73.
159.105 One Party Consent.151152. 80-81.163-164 IRSG.141 P Partnership.110.Interrogate.145.107 M Magistrate Court.80-81.131-132.59 Misdemeanor. 73-74.107 J Judgement Debtor.38 Interview Problems.143. 97.41.68-70.159-162 Metropolitan Court. 41 Open Records Request.155.153.76 Overcoming Objections. 50.40-43 NHTSA.55 Missing Persons.18.104.22.168.120 193 .70.119 Note taking.170 Interview Themes.115-119.93-95 Motor Vehicle Records.35 Interview Summaries.133 Municipal Court.139. 101.136. 50 Microfiche.46.30-31. 117 O Obituaries.58.104 Medical Records. 52-56. 10.73 Minute Orders.96-22.214.171.124-11.124-125. 10.35 Own Recognizance.50 N Newspaper.11 Investigation Plan. 10. 50 Marriage Records. 145. 76.
44.87. 62-63 Traffic Tickets.115.149 Police Reports. 34.72.63 Trust Deed.54. 93-95 Sole Proprietorship.91 Photography.29. 32.164 Summary Judgement.111 Reverse Telephone Searches.162 Retaliation. 104.58. 162. 68-70 Subpoena. 87. 16 Restraining Order.61.156.156-159. 105-106 Testimony.144 Tort Claims. 17.65.136 Reverse Address Searches.147.116 Superior Court.102 Transcripts. 103 Residential Care Facility.149.64.108-109.40-41 Tax Lien.124-128.73.117 Public Records Request. 45.102.134 Telephone Directories.126.96.36.199.149.153. 139.55.141 Professional Licenses. 85 S Search Warrant.59-61.133 R Racial Discrimination.97 Pretext.111.145-146.119-120.51 T Tape recording.75. 170 Post Office Boxes.57. 45-46. 54.146-147. 58 Sex Harassment.117.Perjury. 10.104.136 Real Estate Deeds.152-153.111. 142 Prior Consistent Statement. 97. 57.141 Personal Injury.15. 165. 133 194 . 76-77 Q Quitclaim Deed. 156. 138 Skip Tracing. 74. 40-41.90 Police Officers.50.99.99.
147.163 White Pages.164 Y Yellow Pages. 15 Wrongful Death.85.91 W Whistleblower.159. 158 V Violence Against Women’s Act.108 Witness Appearance. 6. 157 Videotape. 6. 34.161 Uniform Probate Code.U UCC Filings.106.133.156-157.135.113 195 .
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