For many in my generation, when we hear the phrase “private investigator”, Tom Selleck playing Magnum, P.I. is what springs to mind. Or Jim Rockford when I really get honest about my age. But in the real-world practice of law, there are certain times when a good private investigator can be invaluable, even if he isn’t a Ferrari driving ex-Navy SEAL.
One example is locating difficult to find witnesses. A few years ago we had a red light—green light case in Baltimore City where our client had a permanent crush injury to her ankle. The case was vigorously contested on liability, and the only locatable witnesses agreed that the defendant had a green light. So I got my investigator working on locating the other witnesses who were listed on the police report. He found one of them- an 11-year-old boy who had seen the accident happen from a friend’s porch that was located a short distance from the light. He confirmed that my client had entered the intersection on a green light.
We tried that case. The jury found the boy more credible than the adult witnesses, who had been drinking that afternoon. The jury awarded our client over a million dollars in damages- in a claim we could never have won if we hadn’t found that witness.
Locating Defendants and Witnesses
Private investigators just seem to be better at locating people than process servers. So besides locating witnesses, often I will use a private investigator to serve a summons on a defendant if they are hard to find. I think one reason PIs are better at this lies in the compensation structure. Process servers only get paid when service is made, while PIs get paid by the hour. So the process server has a financial disincentive to spend time working to locate a “hard serve” while the PI does not. Of course, another factor is that the PI likely has investigative training that the process server does not.
PIs are also good for taking recorded statements from witnesses once they are located. This is important because it is possible for the person who obtained the statement to become a witness in the case if there are any questions about the authenticity of the statement or the circumstances under which it was taken. That prevents counsel from becoming a witness in the case.
Private Investigators Testifying at Trial
You may need to bring a private investigator to testify at trial. Private investigators as a class are not great at trial. I think many lawyers have the expectations that a PI is someone who is a caging veteran at testifying, a sentiment assisted by many private investigators who play that role. It is also easy to impeach their testimony as biased because they are compensated by the party offering the testimony. The message for Baltimore lawyers here is tread carefully. Make sure that witness is ready to go and understands they have a “just the facts” role at trial.
Maryland Practice Tip
Often insurance companies will get a recorded statement from a witness shortly after an accident occurs. In many cases, this will be months or even years before you know the witness even exists. So when I send an investigator to locate and get a statement from a witness, I send along a pre-printed permission form for the witness to sign allowing me to get a copy of any statement they have given previously. Once it is signed, under Md. Rule 2-402 (f), the defense must produce a copy of the statement.