Principles of Legal Investigation Dean A. Beers, CLI

Legal InvestigationThe Passionate Search for the Facts
Dean A. Beers, CLI
Forensic Investigators of Colorado, LLC
(970) 691-0813 / (970) 372-4717 fax
beersda@Forensic-Investigators.com

What is‘The Passionate Search for the Facts’ ?
As Legal Investigators, this is our only true function
We are the finders of facts – extenuating, aggravating, mitigating, objective, and subjective.
ANYTHING that supports or refutes any or all of the components of the alleged crime or civil action.
Your passion for this profession will be reflected in your efforts and final report.
Personal Injury, Negligence & Death / Criminal Defense
www.Forensic-Investigators.com (970) 691-0813

Our Responsibilities
We have professional obligations to ourselves, the attorney, and our client – to be:
Informed, become informed, and to inform
Unbiased and open minded
Conscientious of our fiduciary responsibility
Honest and Ethical
Unrelenting in our search for the facts

Our Goals
Minimum
Prove or disprove the civil allegation(s) did or did not occur (plaintiff or defense)
Presenting a factual basis that multiple civil allegations are true or false (plaintiff or defense)
This supports the ‘preponderance’ and also begins to define the parameters of comparative or contributory negligence
Better position for settlement negotiations

Our Goals
Minimum
Prove criminal charge(s) did not occur.
Presenting a factual basis that at least one of the criminal elements are false.
One element disproven lends to ‘reasonable doubt’
Better position for plea negotiations
Better position for sentencing mitigation

Our Goals
Most desired
Prove or disprove the criminal elements could not occur
Presenting a factual basis that all of the elements are false
Proves absolute innocence
Better chance of complete dismissal

Our Goals
Most desired
Prove or disprove the civil allegations could not occur (defense) or did occur (plaintiff)
Presenting a factual basis that all of the allegations are false (defense) or true (plaintiff)
Proves absolute innocence (defense) or responsibility (plaintiff)
Better chance of complete dismissal (defense) or no comparative / contributing negligence (plaintiff)

Our Goals…BUT
Most usually happens…
Civil – comparative / contributing negligence and settlement
Criminal – plea negotiation and mitigation
We must be prepared, and prepare the attorney, for all possibilities in settlement and plea negotiations

What Does It Take?
The key elements to successful investigation are:
Sufficient Time
Sufficient Funds
Sufficient Resources
All of these are usually limited and balancing them to create an advantage can be difficult.

What Does It Take? Time!
You may have hours or months to prepare and conduct a full investigation, or only key components of the investigation.
Additional staff may be necessary (adding funding and resources)
Focus on the areas that will produce positive results in the time allotted
Work the short-term, but plan for the long-term
(things may change – work the present but plan for the future)

What Does It Take? Funds!
Limited budgets are expected, especially to start.
Hopefully your time is not also limited
Make efficient use of time and resources based upon immediate and necessary goals
Focus on the areas that will produce positive results with the funds allotted
Maintain a list of potential tasks if additional funding is provided

What Does It Take? Resources!
Resources come from a variety of places
Our developed resources – including experience, skills, education, colleagues, associations, etc.
Client’s relatives, friends, neighbors, colleagues.
Developing professional and case specific resources can greatly make up for insufficient time and funding. Create, maintain, and share your resources.

What is the Role of theAttorney
They are the presenters of fact.
They develop the legal strategy that will put our facts before the trier of fact – judge and jury.
They are our ‘boss’ but depend on our education, training, experience, and expertise to conduct a thorough fact-finding mission.

What is the Role of theLegal Investigator
All follow five simple investigative steps:
Prepare
Inquire
Analyze
Document
Report

Teamwork is Essential

Prepare
Review all discovery and disclosures
Review the elements of the charges / allegations
Develop case specific investigative strategy
Go to the scene(s)
View the evidence, vehicle or property damage, and premises
Have excerpts of reports, recordings, and photographs available for interviews
Prepare questions for interviews

Prepare…Review all available Discovery and Disclosures
Records (medical, civil, criminal, education, employment, etc.)
Reports (law enforcement, investigating agencies – OSHA, NTSB, etc.), prior investigations, etc.
Audio and video of recorded interviews
Scene and incident diagrams and photographs
Victim and witness written statements
DO NOT leave any form of record unchecked!
(Missing or conflicting information)

Prepare…Investigative Strategy
Develop case specific investigative strategy
All incidents are reported to or investigated (OSHA, NTSB, Risk Management, Road and Bridge, etc.)
But not all reported incidents are investigated
What: Evidence or witnesses are time-sensitive
Who: Additional or expert information sources
How: Find witnesses, reports, photographs, experts, etc.

Prepare…Go to the Scene
When: As close to the same date and time as underlying incident (ASAP). The same season may be necessary (i.e. rafting and river conditions)
Do this before interviewing witnesses to familiarize yourself with what they report
DO NOT assume that all evidence has been documented and collected
Compare the scene to the reports and discovery
Consider revisiting the scene after interviewing witnesses to confirm their information

Do your own photographs, diagrams and measurements
Your own documentation is the best documentation
You may need to report or testify on your findings
You may find contradicting information, such as: measurements, obstructions, clearances, undocumented evidence, etc.
Your findings may be consistent with, or differ from, those previously reported – document this

Use the perspective of the victims, witnesses, and responding personnel
Look for any inconsistencies or discrepancies
Look for contradicting and supporting evidence
Look for new evidence

Prepare…for Interviews
What are your goals in the interview?
Witness accounts and unreported information
Secure a supporting or negative statement
Determine if reports and discovery are accurate
Clips, quotes, etc. prepared for interviews
This may refresh their memory, enlighten them to how their information relates to the events, and show them that you are professional and prepared

Prepare…an Outline and Questions for Interviews
Include your client, victims, witnesses, etc.
It is not necessary (or recommended) that you have detailed prepared questions at the interview
This will seem that you are reading a script and just going through the motions
Have a ‘conversation’ and follow where it goes, maintaining control of the interview
Refer to these notes or outlines as necessary and before concluding the interview

Prepare…View the Property Damage or Premises
Do your own photographs, diagrams, and measurements
Many ‘professionals’ guesstimate measurements and base diagrams from memory
Look for what is reported and what is not
Look for supporting information, mitigating information, damaging information, and inconsistencies to the reports and statements

Inquire
Complete background investigations
Contact victims and witnesses
Expand your investigation
Make recommendations and requests for additional information

Inquire…Backgrounds!
Complete any background investigations and verify provided background information for all victims and witnesses
This information may support or impeach
Look for information that may affect what they report (i.e. desire attention, past perjury, related criminal history, etc.)
Avoid surprises!

Inquire…Interviews
Contact and personally interview all victims and witnesses and approved by the attorney.
Use telephone interviews only as warranted
Record all interviews and/or obtain a sworn statement
Ask the Who, What, When, Where, Why and How
Have diagrams or maps ready for each witness
Ask each witness if there are any other persons to contact and for the contact information

Inquire…Expand Your Investigation
Canvass the neighborhoods and businesses for witnesses, including security/surveillance cameras
Obtain reports of weather, weather warnings, road conditions, history of incident area, etc.
Confirm what is in the reports and what witnesses report
Check the unusual – quiet neighbor, urgent care clinics, food banks, homeless shelters, delivery drivers, etc.

Inquire…Request More Info
Make recommendations and requests for additional information (i.e. EMS logs, 911 calls, etc.)
This information is often not included in discovery
This information has details and other persons to contact, as well as may confirm or dispute reports
This is not just a ‘selling’ point – it is an important investigative step to find all of the case facts

Analyze
It is important to organize your investigation into assignments and stages:
These might include immediate, interim, and long term assignments
Evidence and discovery to review
Incident scene to investigate and document
Key witnesses to interview
After completing each stage of assignments, analyze the case and progress to determine any new or different courses of action
Continue this process until disposition or completion

Document
Have evidence logs, photograph logs, diagram details, witness information, time lines, etc.
Keep continuous case progressive information in a summary
As the case nears possible settlement, disposition, negotiations, or trial – the attorney will want a concise summary of the case reports
This will allow you to (almost) effortlessly present this information to the attorney

Report
In each report detail specific assignment progress, as well as:
The status of any ongoing, suspended, or changed assignments
New findings, conflicting findings, supporting information, and damaging information
Include the Who, What, When, Where, and How of each assignment and how they interconnect
Agree with client on intervals of full (or supplemental) reports or interim case status reports (progress updates)

What does all this do?
Legal Investigation, in both civil and criminal matters, is simply a progression from information and leads to the next assignment. It should flow naturally, but be flexible based upon the needs of the case, progress of the case, and developed information.
We are fact finders – for better or for worse for our client. We have a duty to the attorney to present a complete picture so that they may better advocate for their client.

Thank You!