This article first appeared in the August 2021 issue of PLC Magazine
Lily Kennett and Juliet Young of Schillings discuss how law firms should instruct and manage investigators when gathering intelligence in order to build a case strategy.
If, as is often said, “seeing is believing”, a robust portfolio of evidence is essential to the development and management of a legal strategy. This may be provided in part by the client, or drawn from witness testimony. However, obtaining this information and developing it into a digestible evidential format may require specialist investigative services, such as asset tracing, digital forensics and surveillance.
A leading QC recently summarised the issue neatly: “You win cases on what you can prove.” Legal strategy rests substantively on not just what the legal team knows, but what they can evidence, and the right evidence can mean the difference between a win and a loss.
A couple of decades ago, if a lawyer asked an investigator how they had come across a sensitive piece of information in an investigation, there was a chance that the investigator would respond with a knowing look. In other words: don’t ask, don’t tell. Nowadays, following a raft of data protection legislation such as the General Data Protection Regulation (679/2016/EU), legislation over investigator conduct such as the Investigatory Powers Act 2016, and the Leveson inquiry, no one questions the need to understand how information was obtained (www.practicallaw.com/8-523-7852; see feature article “General Data Protection Regulation: a game-changer”).
The investigative profession, however, which runs the gamut from private detectives to international risk management consultancies, remains largely unregulated. Therefore, it is crucial that lawyers are shrewd buyers of these all-important services and are aware of what they should consider before instructing this work, how to ensure that their client’s money is being well-spent and which pitfalls to avoid.
Leveraging existing knowledge
Good advisers are always keen to alleviate the burden on the client, but the client can be a great primary source on a case. Often, clients have been dealing with issues and antagonists for a long time, sometimes years, before litigating. Taking the time to draw out what clients know, even when they do not realise that they know it, has benefits. This can provide rich context and detail that might not be in the public domain, and will help to define the key issues for investigation.
Even if it only seems like background, personal details about the subject can get an investigation moving quickly and efficiently. In one recent example, the client knew nothing about the subject’s financial affairs, but was able to provide a list of their interests and hobbies. This led to the identification of a vintage car collection that was not commensurate to the subject’s salary, and ultimately led to the exposure of the subject’s embezzlement of company funds. The smallest detail can be a useful key to unlock other sources of data.
If the client is willing, it may be worth inviting the investigator to a preliminary interview with the client. This may help the investigator to draw out details that might otherwise have fallen by the wayside. A joint interview will have the additional benefit of putting everyone on the same page and pinning down the critical lines of investigation. This will help both the client and the lawyers to get what they are expecting from the investigation.
The digitisation of records globally, including in many previously hard-to-reach emerging markets, means that information is collected and analysed more quickly. However, there is also a large amount of incorrect and misleading information online, which can distort the picture.
Social media presents another challenge. This seemingly inexhaustible trove of posts, comments, images and videos is such a rich seam of data that in some cases it can replace more time-intensive and costly human enquiries. Assigning meaning to the findings may be more difficult. A subject’s list of friends and followers can provide insights, but does not paint the whole picture. For example, following @RoyalFamily or @BarackObama does not mean that the subject speaks to these people, or that they have any connection to one another.
Fortunately, there are tools and practices that can help a tech-savvy investigator to sift a large amount of data in a reasonable timeframe. Programs like Videris and i2 Analysts Notebook, which collect, process and analyse data are not cheap, but they can carry out the work of many human analysts. Lawyers can and should ask investigators what databases and software tools they rely on and whether these will be applied in their investigations.
Unravelling anonymity is an essential investigative skill, whether the investigator is piercing the corporate veil or unmasking the author of a defamatory post or poison pen letter. In disputes, this often requires seamless collaboration between the investigator and the lawyer who can make discovery applications.
Open source-based investigation can be leveraged to show the court that a reasonable effort has been made to locate an individual. A subsequent court order, such as a Norwich Pharmacal order, may lead to the disclosure of additional details such as a name, location, or IP address by a third party, such as a bank or social media company, that investigators can pick up and feed into the investigation in order to pin down the subject.
Knowing how much information is enough to achieve the lawyers’ aims will require frequent communication between the investigators and the lawyers.
A common intelligence-gathering technique is interviewing witting, or unwitting, human sources. The results can range from informed opinion with little probative value to determinative evidence, albeit of dubious provenance. It is important for the lawyer to understand what the investigator proposes to do and how they propose to do it. Regrettably, investigative proposals are often opaque and can be beset by jargon such as “discreet enquiries”, “covert enquiries” or “undercover enquiries”. It can be hard to know what, in practice, an investigator proposes to actually do and whether outright deception is part of the plan. However, an investigator who is confident in their methodology will be prepared to share their key questions, lists of sources and interview plans with the instructing lawyers.
Even if an investigator intends to work covertly in a way that is legal, such as discreet surveillance in a public space, there is no guarantee that it will be done well. In one recent example, a client suspected surveillance in a restaurant when a young couple seated nearby began taking photographs of each other, with the client in the background, using a fairly large conventional camera, which is not equipment that young people typically bring to a Michelin-starred restaurant at lunchtime. It was necessary to carry out some judicious counter-surveillance in order to ensure that no undue intrusion was suffered. While it may seem like the stuff of Hollywood films, there are also risks to the lawyer when instructing this type of work, just as there are to investigators.
For more sensitive situations, such as litigation support work and asset tracing, enquiries would ideally be conducted when the investigator has exhausted other sources of intelligence. This helps to keep the focus on the collection of only necessary and legally-obtained evidence.
The term “asset tracing” conjures up images of sunny places for shady people and private detectives tailing suave socialites to yachts or luxury buildings. The reality is far more process-driven and relies on fine attention to detail, rigorous methodology and a relentless pursuit of potential leads. Asset-tracing experts will nimbly switch between linear and lateral thinking, making judgments on which leads to pursue.
Lawyers seeking to recover assets should consider involving investigators in developing the legal strategy. The investigators may seek to establish:
- Which assets will most disrupt and destabilise the other side, putting pressure on them to pay.
- Whether there are other claimants.
- Whether court orders will need to be enforced in foreign jurisdictions.
It is best to agree the output in advance, for example whether the investigator should provide a detailed report or a tabular format accompanied by a well-ordered folder of exhibits. It is likely that a detailed network map and supporting documents will be more useful than a hefty report.
Keeping the scope and deliverables clear and tightly managed will be more effective than setting a big budget, broad scope and long timeframe. Asking investigators to provide weekly updates will mean that intelligence feeds into thinking in real time, and lawyers can adapt the scope of the investigation as new information comes to light.
The value of investigative work on a case is not strictly limited to what will be submitted in court and no high-stakes litigation is complete without aspects playing out in the press. If information cannot be used as evidence, there is a strong chance that it will be used by both sides to fuel stories in the media.
Building a trusted relationship with an investigator will be invaluable to develop the evidence, but it can also help lawyers to spot opportunities to strengthen their overall position and replicate the work that the other side may be doing. The best results are always achieved when working collaboratively, with a shared perspective on the legal strategy. Lawyers who have a deeper understanding of what is possible in investigations will have an edge over their opposition, and their clients will get better value for money.