A Guide to Business Organization Flexible_9

A Few Words About Investigations in Europe 175 outline of the information expected can speed the work enormously. You can make the process more transparent and comfortable for the overseas investigator and your client if you all understand what is required to get started and what to expect. • Be prepared to tell the investigator precisely where the work is located. The more precise, the better. • Provide the name of the entity in which you are interested if at all possible. • Be prepared for the investigation to take longer than it would in the United States. • Expect that there will be some documents that will not be acces-sible. • Understand that for a number of reasons, the cost will be higher. Chapter 14 PROFESSIONAL PRIVATE INVESTIGATORS IN THE CIVIL JUSTICE SYSTEM WARREN J. SONNE ost if not all civil justice systems around the world provide a forum for settling claims, or disputes among people, and enforc- ing the government’s laws. These systems vary greatly from place to place and can change rapidly over time. King Solomon used the threat of a sword to settle the opposing claims of two would-be mothers; today issues of embryonic cell research and human cloning are part of the modern legal lexicon. As civil laws have evolved, so have the professions that provide ser-vices to assist with the prosecution or defense of the parties involved. Judges and advocates are better educated in the laws; doctors (of both medicine and philosophy), and engineers are called upon to provide advice to their clients, and/or expert testimony based on their years of formal education and experience. New professions, such as computer or cellular forensics, are created as new technologies appear. Professionalism in the investigative field has kept pace, providing great opportunities for private investigators to work with preeminent clients. It is no surprise that there is no single universal standard or license for private investigators, just as there is no universal license for doctors or lawyers. Through perseverance, however, and aided more recently by the development of the Internet, private investigators have been able to expand their knowledge base; communicate ideas; and improve the local, national, and international professional associa- 176 Professional Private Investigators in the Civil Justice System 177 tions, transcending borders and time zones. We are indeed a profession, because of the following: • We have a universal philosophy to honestly seek the truth for our clients. • We have developed bodies of knowledge that we archive for the use of others. • We continually publish literature of research, and peer review. • Our leaders around the world represent us to governments, cli-ents, and the press. • Our associations have codes, guidelines, oaths, mission, and eth-ics statements. • We advocate for licensing, certification, specific initial qualifica-tions, as well as requirements for ongoing education. • We have formal dispute resolution, complaint, and disciplinary procedures. • We offer thorough and often highly specialized investigative ser-vices. • We investigate for our livelihoods. There is a “natural selection” process at work within the civil justice field. Both plaintiffs and defendants seek out the best-qualified attor-neys to support their cause. These same clients or their advocates will seek out the best-qualified persons or companies to assist them. If a private investigator is required for either litigation or other issues, clients will look for the most-qualified professional they can find. Nothing builds a long-term relationship like success does. The strong will survive. Exactly what are professional private investigators within the civil justice system? Let me start with what we are not: • We are not lawyers, yet we need to know the legal limits of our actions and stay within them. We need to understand the issues and the theories of law that are involved. • We are not engineers, yet we need to have an understanding of how things work or were designed to work. We need to know the products in question and how they are used. We need to have a good eye for detail. 178 Basic Private Investigation • We are not paramedics, but we need to have an understanding of what they do at accident or injury scenes. • We are not automotive mechanics or plumbers, yet we need to have a concept of normal operations, maintenance, and repairs. • We are not janitors, yet we need to know how and when things get cleaned or maintained. • We are not firemen, yet we need to know their basic procedures at the scene, as well as their record-keeping procedures. • We are not handymen or carpenters, yet we need to know how they fix a loose handrail or a step or the proper use of a nail gun. • We are not the police, yet we need to be especially aware of their actions at accident or injury scenes and their follow-up investiga-tive procedures. • We are not doctors, auto body mechanics, tow truck drivers, pro-perty managers, truckers, or so many of the other professions that we are called upon to investigate or interview during the course of a civil matter. What we are: • We are the front line eyes and ears for our clients. • Wearethegatherersoffacts;obtainerofrecords;locatorofvehicles and other equipment, or parts thereof; interviewer of witnesses; professional photographer; safe guarder of evidence; liaison with law enforcement; expeditor, report writer and many others things. • We are the seekers of the truth, the true reporters of certain life events. “As gatherers of facts it is our responsibility to obtain the most info-mation possible. The term knowledge is power has real-world mean-ing to our clients. If we are able to provide them with specific facts, or witnesses that are not known to the opposition, it allows our client to better formulate their plan. On the other hand, should the opposition obtain information or witnesses that we are unaware of; it places our client at a distinct disadvantage. You will not keep clients if you con-tinually leave them under-informed.”1 1. Warren J. Sonne, Investigating automotive product liability claims, PI Magazine, 70, Nov/Dec 2003. Professional Private Investigators in the Civil Justice System 179 CIVIL INVESTIGATION There are three basic differences between criminal and civil mat-ters: (1) in criminal matters, the plaintiff or accuser is the “People of the State” or “of the United States,” whereas in civil matters the ac-cuser is overwhelmingly a private individual or business entity who believes that he or she or it has been wronged, (2) the punishment at stake in criminal cases is incarceration and occasionally a fine or resti-tution, whereas the punishment in civil matters is usually monetary, and (3) the evidence requirements (burden of proof) are much greater in criminal cases than in civil ones. In the United States, the burden of proof in criminal trials is always on the prosecution, who must prove the case beyond a reasonable doubt, yet in civil cases this burden always begins with the accuser but may under certain circumstances shift to the defendant and both must only prove the case by a preponderance of the evidence, meaning just a little more than their adversary. In some civil cases, the level of proof may require the slightly higher level of clear and convincing evidence that is still well below the criminal requirement. Each state in the United States addresses this burden of proof in its own way. Other nations have developed their own distinct burdens of proof. Other differences between U.S. criminal and civil matters have to do with the protections that are afforded to the participants under the law. As long as the government or its agents are not prosecuting, civil cases are not filled with issues such as the U.S. Supreme Court’s 1966 Miranda decision (“The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to con-sult with an attorney and to have that attorney present during ques-tioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him”2), or the rules of evidence defined in the Supreme Court’s Mapp v. Ohio decisions, which decided that evi-dence in state court criminal cases that was “obtained in violation of the Fourth Amendment, which protects against unreasonable searches and seizures, may not be used in criminal prosecutions in state courts, 2. Miranda v. Arizona 384 U.S. 436 (1966) ... - tailieumienphi.vn