A seamless working relationship between a litigator and an investigator can be the key to uncovering crucial evidence, and ultimately help your client win a case. But how can you get the best out of your investigators? And which simple questions should you ask before instructing them? Our investigator Juliet Young offers her top ten things to consider.
1. Provide context. Rather than focusing investigators narrowly on a task – and potentially missing something of value – put the task in context and give them the ‘theory’ of the case.
2. Your client is your first source. Even if it only seems like background, the smallest details about the subject can get an investigation moving quickly, and provide a useful key to unlock other sources.
3. What’s in their toolkit? Lawyers can and should ask investigators what databases and software tools they rely on and whether these will be applied in their investigations. Don’t be fobbed off with responses that this is proprietary information.
4. Human source protocols. Ask if they sub-contract source enquiries and, if so, will they tell you who to, and what script that person is using? What onboarding and security protocols do they use for contractors?
5. Get them to define terms. Investigative proposals are often opaque and can be beset by jargon such as “discreet enquiries” or “covert enquiries”. It can be hard to know whether outright deception is part of the plan. An investigator who is confident in their methodology will be prepared to share their key questions and interview plans with the instructing lawyers.
6. What does ‘good’ look like? If identifying or evaluating witnesses, agree upfront what a ‘good’ witness looks like.
7. Agree regular check-ins (at least every 5 days). This makes the process more collaborative and more efficient. Investigations are inherently difficult to predict and investigators should consider your views as to what may be relevant.
8. Deliverables. Agree what the deliverable will be – a report, a memo, an email, an i2 chart, an excel, or a table of exhibits. Building a trusted relationship with the investigator where they can deliver verbal updates and information by email to feed into your statement of claim/defence may be more cost effective.
9. Risks and uncertainties. It’s tempting to be optimistic about outcomes, but a good investigator should flag risks and uncertainties. Common problems include: very low profile subjects; a very high risk of the subject finding out about enquiries; tight timeframes; and conducting human enquiries in certain jurisdictions during religious holidays.
10. Get clarity upfront on what is likely to be ‘evidence’ versus ‘intelligence’. Open source intelligence by its nature is evidential. Human source enquiries are likely to be ‘intelligence’. If it is desirable to have a source provide a witness statement, which may involve a secondary process of evaluation of suitability/negotiation.
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