Professional Private Investigators in the Civil Justice System

Basic Private Investigation published by Charles C Thomas, Springfield, IL

2011, (paper) ISBN 978-0-398-08642-8


Chapter 14

Professional Private Investigators in the Civil Justice System

Warren J. Sonne, CPP, CLI



Most if not all civil justice systems around the world provide a forum for settling claims, or disputes among people and enforcing 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, while 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 services to assist with the prosecution or defense of the parties involved.   Judges and advocates are better educated in the laws; doctors (both medical and PhD), and engineers are called upon to provide advice to their clients, and/or expert testimony based upon 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 are no universal license for doctors or lawyers.  Yet, through perseverance,  aided more recently by  the development of the Internet, private investigators have been able to expand their knowledge base; communicate ideas; and improve their local, national and international professional associations, transcending borders and time zones.


We are indeed a profession, since:

  • We have a universal philosophy to honestly seek the truth for our clients.
  • We have developed bodies of knowledge, which 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, clients and the press.
  • Our Associations have codes, guidelines, oaths, mission and ethics statements.
  • We advocate for licensing, certification, specific initial qualifications, as well as requirements for ongoing education.
  • We have formal dispute resolution, complaint and disciplinary procedures.
  • We offer thorough and often highly specialized investigative services.
  • 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 attorneys 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.

The strong will survive.




Chapter 14


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 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.

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, 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 investigative procedures.


We are not doctors, auto-body mechanics, tow truck drivers, property 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.




We are the front line eyes and ears for our clients.


We are the gather of facts; obtainer of records; locator of vehicles 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 information possible. The term “knowledge is power” has real-world meaning 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 continually leave them under-informed.”[1]



There are three basic differences between criminal and civil matters; 1) in criminal matters the plaintiff, or accuser is the “People of the State” or of the “United States,” while overwhelmingly the accuser in civil matters is a private individual or business entity who believes that they have been wronged, 2) the punishment at stake in criminal cases is incarceration and occasionally a fine or restitution, while 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 U.S., the burden of proof in criminal trials is always upon 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, both of whom 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,”[2] which is still well below the criminal requirement.  Each U.S. state will address 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. So 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 consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him”[3]), or the rules of evidence defined in the Supreme Court’s Mapp v Ohio decisions,  which decided that evidence 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, as well as federal courts.”[4]  This reference to “unreasonable searches and seizures” only applies to government agents, and not to non-governmental plaintiffs and defendants  in civil matters.  Nor are there any other constitutional protections under the Fourth (unreasonable search and seizure), Fifth (self-incrimination and speedy trial) or Sixth (right to counsel) Amendments. There is also no double-jeopardy issue between the criminal and civil laws, as demonstrated by the civil prosecution of O.J. Simpson after his acquittal on criminal murder charges.


These differences in the U.S. criminal and civil systems of the law have a significant impact on the manner in which private investigators conduct their business. This chapter is not being written as a legal primer, nor should it be interpreted as legal advice, rather it offers a general overview of the issues that professional private investigators deal with on a daily basis.  Investigators are strongly urged to seek the advice of their own attorneys, and/ or their attorney clients, and to familiarize themselves with the appropriate laws for their geographic area of investigation, both in the U.S, and as applicable, internationally.



For the purposes of this chapter, “civil investigations” will be considered to be U.S. cases that begin as non-criminal, even though they may evolve to reach the criminal threshold. Other countries may have similar or very different concepts.  Furthermore, the investigative techniques will be discussed without bias as to plaintiff or defendant clients.  The role of the investigator as the seeker of facts applies to all cases, regardless of the nature of the client.


Civil law is an overly broad term, since it includes many specialized and diverse areas such as:

  • International law
  • Constitutional and Administrative law
  • Contract law
  • Tort law
  • Property law
  • Equity and Trusts
  • Labor law
  • Human and Civil Rights
  • Immigration law
  • Social Security law
  • Family law
  • Commercial law
  • Admiralty law
  • Intellectual property
  • Banking law
  • Tax law
  • Antitrust law
  • Environmental law, and other sub-specialties.


At some point in time, a private investigator may become involved with cases that touch upon these areas of the Civil Law, and in fact there are some investigators who specialize in many of these categories. Yet, of all these areas, professional private investigators are more likely to be involved in the area that deals with negligence; Tort Law.




“Torts are civil wrongs recognized by law as grounds for a lawsuit.  These wrongs result in an injury or harm constituting the basis for a claim by the injured party…

…While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms… Among the types of damages the injured party may recover are: loss of earnings capacity, pain and suffering, and reasonable medical expenses.  They include both present and future expected losses… Torts fall into three general categories: intentional torts (e.g., intentionally hitting a person); negligent torts (causing an accident by failing to obey traffic rules); and strict liability torts (e.g., liability for making and selling defective products).  Intentional torts are those wrongs which the defendant knew or should have known would occur through their actions or inactions.  Negligent torts occur when the defendant’s actions were unreasonably unsafe.  Strict liability wrongs do not depend on the degree of carefulness by the defendant, but are established when a particular action causes damage.” [5]




Torts are likely the basis for the majority of investigative man-hours expended in civil cases. A party who believes that he or she was harmed by another party’s negligence can institute a lawsuit for the purpose of collecting damages, and in some cases to prevent the defendant from committing the same type of harm to others.  Many times the defendant may also face the risk of additional monetary punishment in the form of “punitive” damages. Punitive damages (punishment) can be awarded in most states when the jury finds that the defendant knowingly or maliciously harmed the plaintiff(s).  In cases such as this both the plaintiff and the defendant may retain the services of private investigators.  Automobile accidents, trip and falls, dog bites, and product liability cases are examples of torts.


The goal of the plaintiff in tort cases is to prove the negligence of the defendant. Many times plaintiffs will share in the negligence if they have done something themselves to cause the injury, or failed to do something that could have prevented or lessened it.  Defendants will seek to prove that they did nothing wrong, or that the plaintiffs were responsible, or at least partially responsible for their own damage or injury.  This theory of law is known as contributory negligence and in several states it can prevent a plaintiff from winning any award in a case in which he or she was found to be even the slightest bit negligent.


The degree to which negligence must be proved varies from state to state, and in most jurisdictions any damages that are awarded to the plaintiff may be reduced by the percentage of negligence for which the plaintiff was found to be responsible. For example, if  the jury judge found that the plaintiff’s injuries were worth $100,000, but they also believe that the plaintiff was 25% at fault in the accident, the amount that the plaintiff would be awarded is $75,000.  This is known as “comparative negligence.”


Plaintiffs will try to prove that the other party was responsible, or a least more responsible than the plaintiff. In most personal injury cases the plaintiff will need to show that the defendant was either the direct cause, or through some negligence caused the plaintiff to be injured.  Often times, private investigator will be leading these searches for negligence.


In certain instances, such as product liability cases the manufacturer or seller may be liable based solely upon the faultiness of the product, whether the defect occurred during the design, construction, or packaging of the product, or if there was a failure to warn the user about some hazard involved with the product’s use. Some notable examples of this theory of law are the Ford Explorer/ Firestone tires 15″ ATX, ATX II, and Wilderness AT tires, which suffered from a high tread-separation rate; Asbestos or Lead Paint litigations;  or the current (2009-2010) Toyota “sudden acceleration” cases, which should begin making their way through the courts shortly.



When selling their products, the manufacturer, and their entire downstream chain of vendors or resellers, may be held responsible for injuries caused by the use of that product.  Each state has its own rules regarding the statute of limitations for bringing such law suits, and/or may have enacted  a statute of repose.


 “Statute of Repose definition –  n

A statute barring a suit a fixed number of years after the defendant had acted (usually by designing or manufacturing an item), even if the injury suffered by the plaintiff occurred after the period had lapsed.”[6]


Warnings and instructions on the proper use of a product, such as using a gas operated generator only in a well ventilated area, or wearing seat belts to protect yourself from injury during vehicle accidents are now required by law in the U.S.   In such cases there is no need for the plaintiff to prove negligence, only that the product was defective, or that there were no adequate warnings.  Again, the laws governing product liability are determined by each state, or country and are not universal.


However, if the injured party may have been using the product in an inappropriate or reckless way that was not imagined by or designed for by the manufacturer, the private investigator’s hunt for contributory and/or comparative negligence may be back on.  Examples of possible inappropriate or reckless use would be use of a flashlight to hammer a nail, causing an injury from a broken lens or casing; using the family car to knock down the barn; or using a propane torch to dry your hair.  Again, each State treats these issues differently, so private investigators need to know what they should be looking for.


In most cases involving strict liability, meaning that the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective, there may only be a limited need for private investigators. These cases generally involve plaintiff’s experts reviewing the defendant’s records obtained through the discovery process, or that may have been obtained from other attorneys who were successful in bringing similar product cases against the same manufacturer for the same defect.   Investigative requirements may only be limited to the verification that the injury was caused by the product, to confirm that the plaintiff is who he/she claims to be, or that he/she was exposed to the specific product as claimed.


In other cases, such as “asbestos,” “tobacco, and “lead paint’ litigation,  the investigations may span back over decades to determine if the plaintiff actually worked with, or was exposed to products that contained these substances.  Asbestos litigation was originally brought against the manufacturers of insulation and flooring materials, but has expanded to include the automotive and other industries that used asbestos in frictionable products such as brake pads and clutches.  These types of litigations have also expanded to include those who may have been exposed by second hand means, such as sitting on their parents’ lap when they returned home from work from an asbestos contaminated site, or inhaling smoke from someone else’s cigarette.


Another theory of negligence that still exists in some states is “Assumption of Risk:

Potential plaintiffs sometimes take the risk of injury onto themselves and absolve potential defendants from any liability. Formerly, this was an affirmative defense available to defendants, but has since been subsumed by contributory and comparative negligence in most jurisdictions.”[7]


Prior to the current worker compensation laws, the assumption of risk was a common defense used by employers. Now that worker’s compensation laws prevent employees from directly suing their employer for negligence, this defense has all but been abandoned.


However, many states still follow a related theory of law called the “Fireman’s Rule.”   As with the assumption of risk, these laws limit the ability of public employees who are routinely involved in emergencies such as police and fire fighters, to sue for damages based upon injuries that they may sustain during the normal scope of their employment.  The laws vary greatly, with some states allowing lawsuits based upon negligence of the property owner or their contractors, product liability, dram shop laws, etc.


The investigator of tort claims must be aware of the legal requirements of negligence as it relates to their client’s case within the jurisdiction. As a professional private  investigator you will find your clients may consist of both plaintiffs and defendants.  While there are investigators who may limit their practice to one side or the other, most will accept cases from both sides of the aisle.  As your investigation continues you must always look for issues relating to negligence.





As the professional private investigator you are a part of a larger team. Many law firms (both plaintiff and defense) will maintain full time “in-house investigators,” some of whom may also function in a paralegal capacity.  These investigators will usually get to follow a case from intake to disposition, including assisting the attorneys in the courtroom.  Most private investigators will not have this degree of total immersion in the case, yet it is extremely important to become as familiar as possible with every aspect of every matter on which you are engaged.


If you are not an “in-house” investigator, do not be offended if you are excluded from certain knowledge, or certain client meetings. Some attorneys and their clients, especially in product liability defense cases feel that an independent investigator is not bound by the attorney client privilege, and they may feel at risk in sharing all of their secrets with you for fear that this knowledge may be used against them in future cases.  While these meetings may be covered under the Attorney/Client Privilege, which protects private communications between them, there still may be resistance to allowing an investigator to take part, even if the investigator has signed a confidentiality agreement.


Regardless of whether or not you are admitted to the inner-sanctum, you should check your ego at the clients door. Your experience, knowledge and suggestions should always be available for the client to consider, but much like a sports team, there can be only one manager.



Investigators must take care not to deviate from the overall investigative plan without first discussing it with the client. Being a team player is all about communicating.  There may be issues that you are unaware of, such as reasons not to interview a particular person, i.e.;  for fear of alerting the opposition, or worse, damaging your clients case.  Or, if your client has instructed you not to take recorded or signed statements at the this stage, do not take it upon yourself to do so without discussing it first.  There may be good reasons that you are not aware of for not memorializing  statements at this point.  Your obligation is to service your clients needs, and keep them well informed as you move forward.  Communications should be a two-way street, and in a perfect world you would be made aware of changing issues that could affect your investigation.  Regardless, you should ask the client for updates from time to time as well, so that you can keep up to speed with the status of the case.  The investigative plan is not written in stone, rather it will evolve as the case continues.  But, the plan should evolve as the result of a team effort.



 The initial involvement in a tort investigation will vary depending upon the terms of your employment, or your relationship with your client. If you are an in-house investigator for a plaintiff’s law firm you may actually become involved before the attorney does.  Perhaps you work for a large investigative agency that has a nationwide contract with a manufacturer; or maybe you monitor media reports for any mention of your client or their products; or you may be a sole practitioner who has been retained for the first time by a lawyer or insurance company client.  Whatever the retention scenario is,  if possible, you should try to learn as much as you can about the matter at hand prior to your initial meeting with the client.


It is rare in tort cases for an investigator to be retained directly by a member of the general public. In fact, if you are approached by an individual to investigate a negligence case directly for them it may be advisable to recommend that they also retain the services of an attorney.  If you report directly to that lawyer the results of your investigation may then be covered by the attorney/client privilege as attorney work product. You will also be removing yourself from that clients questions regarding whether or not you have actually discovered negligence, and what it means.  Those types of opinions and advise should be answered by an attorney, rather than an investigator.


Since you will more than likely be retained by an attorney, insurance company, or perhaps even directly by a manufacturer or other business client directly, the following pages are written from that point of view.


Good record keeping begins with your first involvement with the case. The method by which you maintain case files will determine how you record, safeguard, and document your information and evidence.  You may be using a case management software package, Redweld’s or other file folders with an Index sheet, notebooks, index cards, etc.  Whichever method you use, be sure to document your initial retention in every case, whether it came by phone, letter, E-mail, or in person.  A best practice is to obtain a written retention letter.


Come to the initial meeting knowing as much about the incident as possible. If there were media reports, obtain copies for discussion with the client.  If you are able to obtain copies of police or other official reports prior to the first meeting, bring them with you as well.  If the client has sent you a synopsis or copies of records, you should attempt to find or verify as much information about the case before your first meeting with the client.  Client relations are an ongoing process that should be pursued at every opportunity.  By your showing initiative and concern for the case at hand your client will quickly develop respect for you  and confidence in your ability.  On the other hand, you should take great pains not to be overbearing or present yourself as already knowing what the client needs.  By collaborating with the client you will be able to develop an investigative plan that should be agreed to by all members of the team.


Be prepared to listen, take notes, and make copies of relevant items within the client’s possession, if the client will allow it. Be ready to discuss the information sources that may be available for you to pursue without subpoena, including government sources such as Building Departments, Highway Department, County Clerks, Board of Health, Motor Vehicles,  Police, etc.   You should be familiar with the types of records that are available from the agencies within your jurisdiction.  For example, depending upon the size of your local government you may be able to obtain records such as:

  • Traffic Light Sequencing Reports
  • Occupational or Business Tax Certificate Filings
  • Food Handler Certificates
  • As-Built Plans
  • Assumed Name or D.B.A. filings
  • Asbestos Abatement inspections or filings
  • Building Codes, Violations and Inspection Records
  • Deeds and Mortgages
  • Property Tax and Homestead Exemption Records
  • Build Permits
  • Animal Licenses
  • Electrician, Plumber, Contractor Licensing
  • Hunting & Fishing Licenses
  • Worker Compensation Claims
  • Vehicle Certificates of Origin, Title Applications, Titles, Registration Records
  • Driver’s License History
  • Accident or Incident Reports from Police and Fire Departments


This is far from a complete list of things that you can obtain, yet each could provide valuable information in your search for negligence. These records may be called different names in your location, but their purposes are universal.  Many of these records are available simply by asking or searching for them, while others may require you to submit a Freedom of Information form in compliance with the laws within your jurisdiction.




 In every case there will be a minimum of two “who’s”; WHO is the plaintiff and WHO is/are the tortfeasor (s) that they believe harmed plaintiff. “Tortfeasor n.  A wrongdoer; an individual who commits a wrongful act that injures another and for which the law provides a legal right to seek relief; a defendant in a civil tort action.”[8]


As the investigator you will be looking to gather as much information regarding these parties as possible during this first meeting.   While it may be easier to initially obtain your clients information, it is advisable to conduct a full and thorough background investigation of all the “who’s” you become aware of during the investigative process, including your own client.   It is your job as the investigator to insure that there are no surprises in store for your client.  If the opposing parties’ investigators unearth something that you should have found, or did find but didn’t tell anyone about, which proves to be damaging to your client, you can be assured that you will not be retained by that client in future cases.  The investigators job is not to tell the client what you think they want to hear, rather it is to tell them what the need to hear.  Most attorneys enjoy hearing good news eventually, but good attorneys want to hear bad news immediately.

The other “who’s” may include the various types of witnesses, businesses, employers, employees, contractors, subcontractors, government agencies, landlords, property owners, pet owners, vehicle owners/operators, emergency workers, experts, etc.  You may not learn of all the “who’s” at one time, so you must be alert to recognize them as your initial meeting and follow-up investigation progresses.



A word about “witnesses.” There are several different types of witnesses that investigators may become involved with in a civil case.  A custodian of records may be called upon as a witness, but it is highly unlikely that a private investigator would be deeply involved with this process.


Private investigators should be concerned primarily with witnesses who may either be “fact” or “expert” witnesses, but these are rather broad terms.   ” A fact witness is a person with knowledge about what happened in a particular case, who testifies in the case about what happened or what the facts are. Fact witness testimony consists of the recitation of facts and/or events as opposed to an expert witness, whose testimony consists of the presentation of an opinion, a diagnosis, etc.”[9]


A fact witness is someone who may provide information about the events leading up to, during or following the incident. These could include people who may have notified the defendant or the defendant’s representative that there was a dangerous condition before an accident occurred (notice witness), or an eye-witness who actually observed the incident take place.

However, police, firemen, EMS, tow truck drivers, etc. may also be witnesses who can provide facts and observations. Other non-expert witnesses may be neighbors, relatives, co-workers, maintenance workers, etc., who can provide information and observations regarding things that happened before, during or after the incident.  These types of witnesses may tell you about a long ignored roof leak that may have contributed to the ceiling collapse that injured your client, or you may learn that a plaintiff has been working even though he/she has alleged a disabling injury, or you could find out that the broken ankle that the plaintiff claims happened in the stairwell of your clients building may actually have happened during a weekly basketball game.


An expert witness is a person who possesses some special technical knowledge and who is accepted by the court to offer opinions about the incident as it relates to his/her particular field. These types of witnesses include medical personnel, engineers, scientists, CPA’s, etc.   As an investigator you may be asked to accompany your client’s expert to accident scenes,  attend or tape record inspections conducted by your client or the opposing party, and to conduct background investigations of both yours and the opposing experts.



Every state, as well as the federal government has a Code of Professional Responsibility, or Rules of Professional Conduct that prevent attorneys from communicating directly with an adverse party who they know to be represented by an attorney.  This prohibition extends to any agent of the attorney, including investigators.



The following is part the American Bar Association’s “Model” from which the individual State and Federal rules were developed:


“DR 7-104 Communicating With One of Adverse Interest.

(A) During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”[10]

 For the private investigator this means that you should not speak to any adversarial party that you know is represented by a lawyer in the case that you are investigating without first obtaining that lawyer’s consent for you doing so.   To do so is not a criminal act, but the potential damage to your clients case could be devastating.


This concept may also apply to employees of an adversarial company, but are usually reserved for employees with a managerial or ownership position, or those that may have direct knowledge of the incident. In any event, before you interview any employee of an adversarial company that is represented by counsel, you should first discuss this matter with your own client attorney.  If you are uncertain as to whether individuals are represented by counsel you should ask them about this during your introduction and prior to asking any further questions about the case. If they indicate they have counsel, terminate the interview until you are able to obtain that attorney’s consent to proceed.



Since this is a tort case, you will be asked to investigate the damage that one party allegedly caused the other party. During your initial meeting, your attorney client should provide you with his or her legal theory of the negligence involved, and from which you will launch your investigation.  As the investigator it is not simply enough for you to learn the legal requirement or threshold of negligence, rather it is far more important for you to understand what, why and how the damage occurred from a practical, real world point of view.


Following is a legal definition:




  1. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from “intentional torts” (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving.” [11]



Simply stated, a person becomes negligent when they fail to live up to their obligations by not following reasonable practices, and when their actions or inactions cause harm to someone else. So, it’s not really actions or lack of actions that are negligent, rather doing or not doing something only becomes negligent when someone is harmed by it.  A tight-rope walker can practice thirty-feet in the air over a concrete sidewalk without a safety net every day and not be negligent,  yet the one time that he falls on top of and injures a passerby below him he will likely  be negligent.  Why?  Because he had an obligation to insure that no one is injured by his actions.  This does not mean that a pattern of reckless or dangerous behavior is not important to demonstrate.  Quite to the contrary, your client attorney will be very interested in developing any pattern of bad or risky behavior on the part of the opposing party that you can learn about and relay to the attorney.


Once again, investigators should be aware of differences in State laws as they relate to negligence. “Vicarious liability” is a “tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as parent and child, employer and employee, or owner of vehicle and driver), to exercise such care as a reasonably prudent person would use under similar circumstances.”[12]  For private investigators in many states, there was little to do in vehicle accident cases where the defendant was driving a leased or rented vehicle.  Vicarious liability in New York State was absolute.  If you were Hertz, or Ford Credit, you were liable even if your renter/lessee was driving recklessly.


In 2003, as a result of continual vicarious liability litigations, many vehicle manufacturing leasing companies such as GM, Ford, Chrysler,  and nearly every major retail bank and credit union in New York State, stopped the practice of leasing vehicles.  This changed when the Federal Public Transportation Act of 2005 became law,  ending the vicarious liability of automobile leasing companies or rental agencies,  which would no longer be held liable for the accidents of their renters or lessees.   An unexpected bonus for private investigators was the need to determine liability in automobile accidents involving leased or rented vehicles in the effected states.

It is the attorney’s job to prove or disprove that a party to the lawsuit had the legal obligation to act or not act in one way or another, and that his/her failure to live up to that obligation caused the injury.  It is the private investigators job to provide his client with the real facts of what actually happened.


You will generally not learn the full magnitude of “what” happened during the initial meeting with the client, yet you should not leave the meeting without obtaining as much information as possible.


You must also listen for the Why’s, When’s, and How’s. You may learn that the injured party fell because there was a crack in the sidewalk,  and you may learn of the theory that the crack was caused by nearby construction of a subway station.  You may learn that several other people had previously reported that they had tripped at the same place.  Not only will you need to learn the time and date of the injury, you may also need to learn when a dangerous condition first appeared.  How something occurred will always be of relevance.  Was there a mechanical failure? Was one of the parties distracted?  Was the weather a contributing factor?  Was it a lack of, or improper maintenance? These are all issues that will require further investigation and documentation.




Now that you’ve learned everything that your client could or would tell you about the case it is time to agree upon an investigative plan.   It is not necessary to reinvent the wheel for every case, rather it is far better to have a general framework into which you can plug in each particular set of circumstances, keeping in mind that “thinking outside of the box” is often useful.  Using what you have learned from the Who, What, Why, When, Where, and How is a good starting point for your plan.  This is also the time for you to discuss your fees and payment arrangements if you have not already done so.


If this is the first time that you’ve worked with this particular attorney or client you should make him/her aware of the types of background investigations you are capable of conducting on all of the parties, businesses, and witnesses (the Who’s). At a minimum, background investigations should include:

  • Verification of the person’s pedigree information
  • Present and prior residences
  • Employment history
  • Litigation history
  • Criminal history
  • Known relatives
  • Neighbors
  • Drivers license history
  • Professional or specialty licenses
  • Vehicles owned
  • Accident reports
  • Property ownership/history
  • Business relationships and associates  Other areas of background investigation can include interviews of neighbors, employers, employees, co-workers, shopkeepers; search for previous insurance claims; conduct surveillance; verify education, hobbies or areas of expertise; military service, etc., and the follow-up on any information that is discovered.


For backgrounds on “expert witnesses” (both yours and opposing) it will also be necessary to verify their education and professional credentials, and uncover any disciplinary actions or complaints against them. Your client may ask you to identify previous cases in which the expert provided testimony so that their testimony can be reviewed.


Background investigations can become quite costly, and they should not be undertaken without pre-approval from the client, who may already be in possession of some of this information.


Your investigative plan should contain the names of all known persons who are involved, and your investigative obligation regarding them, i.e.; conduct a background investigation; interview; surveillance, etc. Since most civil cases take years to reach a final conclusion you should clearly document your client’s instructions regarding anyone that he/she does not want you to speak with, or who not to conduct a background investigation on.  Three or four years down the road your client or another attorney that is assigned to the case may ask you why you did not follow-up on a particular person, and it is best to have these instructions memorialized in your records.


This same practice should be followed with respect to other parts of the investigation. For example, you may recommend obtaining certified copies of all Building Department violations issued for the premises at which the trip and fall accident occurred, or copies of all motor vehicle accidents reported during the past three-years at the same location as your case.  If your client does not think it necessary, you should record his instructions in your investigative plan as well.


Aside from the people involved in the case there are other things that your investigative plan should contain if you are to be successful in providing your client with a clear picture of the event: The What.


In the case of accidents, the plan should include a visit to the scene so it can be photographed and/or videotaped, and measurements taken of the entire area. While accurate information is desired, you may not have the correct equipment or the expertise required to produce exact measurements, or to competently compare your findings to certain specifications.  Your best effort to document the approximate distance is all that should be expected of you by the client.

If more exacting measurement, reconstruction, or a determination of certain specifications is required, your client should retain the services of an expert in that particular field.    Investigators should only portray the themselves as accident reconstruction investigators if they possess the specific knowledge and training to be an expert in that area.


If you are investigating an automobile accident, your plan should include the documentation of all traffic control and roadway markings leading up to and at the accident site, as well as any roadway scars, gouge marks, burns, etc. Line of sight, visibility, time of day, and weather are all important factors to be documented.


In non-automobile accident or injury cases you will need to document issues concerning lighting, visibility, defects, grade, height of steps, hand railings, maintenance schedules and logs, potential attractive nuisance issues, etc. The attractive nuisance doctrine is, “a legal doctrine which makes a person negligent for leaving a piece of equipment or other condition on property which would be both attractive and dangerous to curious children. These have included tractors, unguarded swimming pools, open pits, and abandoned refrigerators. Liability could be placed on the people owning or controlling the premises even when the child was a trespasser who sneaked on the property. Basically the doctrine was intended to make people careful about what dangerous conditions they left untended. Some jurisdictions (including California) have abolished the attractive nuisance doctrine and replaced it with specific conditions (e.g. open pit and refrigerators) and would make property owners liable only by applying rules of foreseeable danger which make negligence harder to prove.”[13]


Your investigative plan will tell your client what you intend to do and give them the ability to add or subtract from it.



Your plan must take into account the amount of time that has passed since the accident. If the incident was very recent, conditions at the scene may be relatively unchanged.  There may still be markings left by law enforcement investigators that you can document, or debris or other evidence from the accident which have either been overlooked by the initial investigator’s, or swept aside such as glass or other parts of a vehicle.


On the other hand, you may be going to the scene days, months or years after the accident or injury.   Things may have been considerably altered, sometimes  as a result of the accident itself.  You may find that a handrail has been installed in a stairwell;  lighting has been added;  Stop Sign or Traffic Control devices now appear at the intersection where none existed before; the road surface has been repaved, re-graded, straightened, buildings constructed or demolished, etc.


Since the scene may have been altered, or originally improperly designed or constructed, it is important to obtain all official records, applications, plans, permits, etc, for a predetermined period of time, both pre and post incident. This should be noted in the investigative plan since it can become a time consuming process.


Other types of official records include but are not limited to Police, Fire Department, Building Department, Traffic Department, Design and Construction Plans (As-Built Plans), Traffic Light Sequencing, Property Records, Tax Records, Business records, Maintenance Schedules and Records, etc. Some items, such as Pre-Hospital Care Reports (PCR’s) and other medical records will require subpoenas, as will most  business or insurance  records.


At times you may be able to obtain the records of non-public companies and individuals simply by asking for them, but if they are not produced voluntarily a subpoena will be required. Your attorney client can also obtain certain records from opposing counsel during the “Discovery” process. “Discovery, n. the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights.”[14]


If you can think of records that the attorney should subpoena, include them in you investigative plan as well. Once received, you will be able to review those records and follow-up as necessary.


Your investigative plan should also indicate your effort to detect any cameras in the area, such as store security, highway department or police department traffic cameras, ATM’s, etc., and for you to conduct a canvass for witnesses.


You should already be aware of when the incident occurred or was reported (the When), but there is another “when” that needs to be addressed in the investigative plan: When is the information needed by? While this initial meeting may be your first involvement in the case, it does not mean that the incident is recent.  You may be called in very near the end of the “Statute of Limitations,” the time that a person can legally wait to start a lawsuit, or you may be retained on the eve of trial.  You must know your own deadlines in every case.


Once you and the client have discussed and agreed upon the investigative plan, your estimated hours for the completion of this assignment, and your fees, it is time to put the plan into effect. Your first item upon returning to your office should be to document your investigative plan by writing your first report to the client.  This report should include:

  • Acknowledgement of your retention, and receipt of any retainer from the client. If you have not obtained a signed retainer agreement you should restate your fees, billing and terms of payment, and reimbursement of expenses policy at this time.
  • A complete summary of the facts as you now know them.
  • A list of all persons involved and your investigative obligation towards them, including background investigations, interviews, and surveillances. Include any specific instructions from the client regarding persons not to be interviewed, or any investigative recommendation that he does not wish you to do.
  • A listing of your investigative assignments, i.e.; processing the scene and canvassing for additional unknown witnesses, obtaining records, searching for media coverage, other accidents at the same location, locating and obtaining vehicles, parts, or other equipment involved in the accident, etc.
  • Any deadlines, or your anticipated time for completion of the assignment.
  • Any special instructions from the client.


Again, private investigators must be aware of the laws relating to retainers and contracts in their areas. For example, in New York State, Title 19 NYCRR, states the following:

Ҥ173.1 Advance statement of services and charges

(a) No licensed private investigator, watch, guard or patrol agency shall undertake to perform any services on behalf of a client unless such licensee shall have delivered to the client a written statement, signed by the licensee, which shall set forth the specific service or services to be performed and the charge or fee therefor….”[15]


However, the statute goes on to say:


“(b) Anything to the contrary of this Part notwithstanding, the statement provided for in subdivision (a) of this section shall not be required to be delivered if the client and the licensee have entered into an agreement in writing, setting forth the services to be rendered and the fee or charge therefor, ….”[16]


Therefore, in New York State investigators can enter into signed, long term agreements that describe the services and fees agreed to with the client (and in the case of an attorney, on behalf of the attorneys clients which they retain you for) , and eliminates the need for individual or separate contracts or agreements in every investigation.



To borrow a phrase from the Boy Scouts of America, “Be Prepared.” After you get to your destination it is too late for you to start thinking about a camera, audio recorder, tape measures, or even pens and paper.  A competent investigator will have the appropriate tools available at all times.  The following items comprise the minimum investigative tool-kit for non-criminal investigations:

  1. A serviceable vehicle with a full tank of gas.
  2. Pens and pencils with erasers.
  3. Note pads.
  4. Graph paper.
  5. Clip Board.
  6. Witness statement forms.
  7. An audio recorder, a supply of unopened audiotapes or digital recording medium, extra batteries.
  8. Quality Digital or 35MM Film Camera with Flash, sufficient memory, or extra film , extra memory cards, batteries.
  9. Tri-Pod
  10. Video camera with extra memory cards or tapes, and extra charged batteries.
  11. Tape measures, retractable (25’ min.) or Measuring Wheel, a Yard Stick, and a set of commercially available reference scales that you can place in photographs, as well as street maps or GPS.
  12. Cellular phone
  13. Magnifying glass
  14. Binoculars
  15. Compass
  16. Hand tools (scissor, screw-drivers, utility knife)
  17. Umbrella
  18. Insect Repellant and Sun-Screen
  19. Reflective Safety Vests
  20. Safety Cones
  21. A Stopwatch, or a watch with a second hand.
  22. Tire tread depth gauge
  23. Magnet

Many photographers use a Polarized Lens Cover to assist in eliminating reflections. Learn how to use you camera or its lenses to adjust the depth of field, image exposure, and macro/micro functions.

You may never get to use some of the tools that you have brought with you, but the one time that you need a magnet you will be sorry that you didn’t bring it along. This is not an “emergency response accident investigation kit.” You are not a safety or risk manager, nor should you be concerned about safeguarding the scene for the police or OSHA if the incident is no longer subject to their investigations.  Yet, neither are you on a demolition project.  If you do find evidentiary matter that has been previously missed by others at the scene, you should notify your client immediately to discuss your next step.

The majority of the items in your kit are used to document what you find at the scene. You cannot overuse the camera or video camera.  If you’ve taken 500 pictures, take another 500.  Take the same picture with and without a flash even, outdoors in bright sunlight, as the flash may eliminate shadows.

Place reference scales in your pictures or videos to provide distance and scale.

Use your audio recorder to make notes as you walk the scene. Record all of your impressions as you see them. Most of the tools in your kit have obvious uses, some are redundant ways to record what you find and others can be used for your own safety. If or how these tools are used is entirely up to the investigator, but it is a best practice to have them available.

POWERS OF OBSERVATION: The most important tool that a professional investigator can possess does not fit into a tool kit, but nonetheless it must be brought to every accident scene. That tool is the power of observation. Observation is an art that must be developed and reinforced over time. It takes conscious effort to recognize what we see, especially for those of who do the same thing every day. The ability to be observant can easily be overridden by the many competing events that we become aware of during these days of information overload. Our senses can become dulled, and our minds preoccupied by the multitude of problems that we encounter, both in our personal and professional lives.

The development of observational skills requires training, but can be easily self-taught. In Sir Arthur Conan Doyle’s The Adventure of The Red Headed League, Sherlock Holmes makes the following observation to Dr. Watson regarding a gentleman whom he had met only for a moment: “Beyond the obvious facts that he has at some time done manual labor, that he takes snuff, that he is a Freemason, that he has been to China, and that he has done a considerable amount of writing lately, I can deduce nothing else.”[17]

Holmes explained his uncanny ability to deduce seemingly impossible information at a quick glance by telling Watson “You know my method. It is founded upon the observation of trifles…Not invisible but unnoticed, Watson. You did not know where to look, and so you missed all that was important. I can never bring you to realize the importance of sleeves, the suggestiveness of thumbnails, or the great issues that may hang from a bootlace.” [18] Holmes practiced the art of observation with the belief that everything has significance.

You can develop your own powers of observation by practicing them on a daily basis. Ask any Golf Pro how to put back-spin on a golf ball and you will get the same answer: Practice.

Observations are not just what you can see, but hear, touch, smell, and taste as well. At one time or another you will be able to make use of all of your senses as a professional investigator.   More than likely you will discover more signs than you ever knew were there before. You may also be able to observe if the signs are effective while engaging several different senses. For example, are there “Curb Your Dog” signs? Or “No Smoking” signs? Or “Quiet, Hospital Zone” signs? You can practice this same exercise by observing things in your residence, such as the way shadows bend on the walls as sunlight spreads across different objects, or you can practice by paying particular attention to new people that you meet and trying to determine their social status, education, employment in the Holmesian traditional by taking note of their grooming (fingernails, etc), jewelry (diamonds, school rings, etc.) language (usage of jargon, etc.).   If you practice being observant you will become observant. Whether you have become a practiced observer or not, you should approach each accident scene with a clear mind. If you are distracted by life events you should come back at another time because you will certainly miss something. KNOW WHERE YOU ARE GOING:

One of my favorite Yogi Berra quotes is I knew I was going to take the wrong train, so I left early.”   Prior to leaving your office you should know the directions to all of the locations that you plan to visit. You may wish to check ahead of time to avoid any construction or accident delays. A GPS is a useful tool should you become lost or need alternate route information.

 Try to set aside a few minutes every day to take special notice of a particular thing, person, or event and list a minimum of ten unique items that you may not have seen without concentration. Start with a familiar setting, let’s say the street that you live on, and write down your observations for later review.   First clear your mind and prepare to concentrate. Deep breathing; calming thoughts; yoga; are all methods that will help you relax. Walk down your block and take note of the signs you see on the houses, fences, street poles, windows and stores. What message do these signs send? Advertising? Warning? Directional? Informational?

The majority of the items in your kit are used to document what you find at the scene. You cannot overuse the camera or video camera. If you’ve taken 500 pictures, take another 500. Take the same picture with and without a flash even, outdoors in bright sunlight, as the flash may eliminate shadows.

You may never get to use some of the tools that you have brought with you, but the one time that you need a magnet you will be sorry that you didn’t bring it along. This is not an “emergency response accident investigation kit.” You are not a safety or risk manager, nor should you be concerned about safeguarding the scene for the police or OSHA if the incident is no longer subject to their investigations. Yet, neither are you on a demolition project. If you do find evidentiary matter that has been previously missed by others at the scene, you should notify your client immediately to discuss your next step.




As an investigator you will be called upon to visit and document many different types of scenes. Accidents and injuries can and do occur everywhere.  Auto accidents happen on local streets; super-highways; bridges, tunnels; inside garages; on ferries; etc.  Non-automotive accidents happen where people work and play; eat and drink; walk and run.   While these various types of cases require different skill sets, the basic investigative techniques remain the same: 1) identify and locate the scene, 2) document the scene through photographs, video, measurements and diagrams, 3) examine the scene and document any evidence, marks, etc., 4) safeguard any evidence if necessary, 5) interview known witnesses, locate cameras in the area that may have recorded the event, and canvass for unknown witnesses.



You’ve now learned everything that the client could or would tell you about the incident. You may have done some preliminary research to prepare for your initial meeting with the client. You have an investigative plan that is approved by the client.  You have your investigative tool kit. You know where you’re going.  So, where are the keys to the car?  Not yet.  Perhaps there is more to learn about the incident before you get to the scene.  Who else may know something about what happened.  Before you leave you may want to  check or recheck the media sources, which may have covered the story.  Perhaps there is a follow-up story, or something that you missed the first time.  Searches of print, broadcast and electronic (Internet) news and blog resources, or social networking sites may provide additional accounts of what happened.  New witnesses can be identified, photographs or videos located,  defects identified, all adding to you existing base of knowledge.  You may learn of people who could be allies or adversaries of your client.



Police are usually dispatched by 911 operators to the scenes of accidents along with an ambulance. If you have been able to obtain a copy of the police incident or accident report you should review it in detail, including any coded cover sheets.    If an interview of the reporting police officer is on your investigative plan, you may wish to see if that officer is working, and if so you may want to call him/her before you leave.  He/she may just consent to meet you at the scene.

  “By starting with the Police Accident Report (PAR) you can confirm the date, time, and exact location of the accident.  You will be able to identify all of the vehicles that were involved by the registration plate numbers, sometimes Vehicle Identification Numbers (VIN), owner’s name and address.  You will learn the names, addresses and dates of birth of all the involved drivers, and at least, the names, ages, and positions, and types of injuries to the passengers of all the vehicles.  The names and contact information of witnesses are usually included in accident reports as are the identities or badge number of other police officers such as accident investigators who may have responded, EMS personnel, tow truck operators, and fire departments that responded.  Traffic summonses are usually listed on the Police Accident Report, giving you the opportunity to obtain a copy of the summons, and if a hearing has been held, to obtain a copy of the transcript.  Additionally, most Police Accident Reports have now been designed to assist Motor Vehicle or Transportation Departments to accumulate statistical data such as lighting, weather, road surface, roadway character, the number of other accidents at the same location, whether there were traffic control devices at the scene, whether the vehicle’s occupants were wearing seat belts, if there was an airbag deployment, and other details that may not be written in the body of the report.  There will usually be an area where the reporting officer can draw a diagram of the accident, or at least select from a standard list of accident types, i.e.; both vehicle traveling in the same direction, head-on, making turns, etc. “[19]


Police incident reports are also prepared in non-motor vehicle accidents, and can also contain much of the same information.   In addition to learning the identities of the officers involved, you will get the officers narrative of who told him what.  If the officer was an eye-witness, so much the better, but it is more likely that you will be reading a story that has been related to the officer by someone else.  The officer may also include his/her own observations, measurements, opinions, etc.  You may find out from the report if photographs of the scene were taken.


Were there any other incident or accident reports prepared? OSHA?  Employer?  Building Manager?  Fire Department?  Building Department?  It would be a big advantage for the investigator to know about the existence of such reports, and to attempt to obtain a copy before going to the scene for the first time.  All of these reports may contain witness statements, lines of sight and distance to the incident, and a host of other information that will be useful to corroborate or dispute your client’s position.



With the preparation and planning now completed, the investigator should be ready to proceed with the established plan. The investigative techniques involved with interviewing, documenting the scene, report writing, evidence etc., have and do merit their own chapters or books, so suffice it to say that with a good “eye” for detail, a good “ear” for answers to questions and the determination to follow up on the investigative plan, every investigator should be capable of discovering the facts and accurately reporting them to the client by verbal and formal report writing.  Verbal reporting and communication with the client attorney cannot be overstated.  Since the private investigator’s obligation is to his or her client, the client must be made aware of the findings, both good and bad.  This should be done verbally, prior to the issuance of a formal report since there may be certain issues that the client does not want to have memorialized in a formal report.


Investigators should continue communicating with the client on a regular basis, preparing reports as events dictate rather than saving everything for one massive final report. Every interview has the potential of creating additional investigation.  Every record that is received has the potential of creating new persons to be interviewed or additional sources to be explored.  Every deposition that is taken can produce new avenues of investigation.  With the authorization of the client, every new lead should be followed up until there is no investigation remaining.

The private investigator’s involvement with the civil justice system does not end with the preparation of the final report. The vast majority of civil cases settle before, or at the beginning of the trial.  Many times the information that was uncovered by private investigators is the reason for one side or the other agreeing to a settlement, and of that we as investigators can be proud.


On occasion a civil law suit will go to a trial, and the investigator may be required to give testimony regarding his or her findings. Well written and documented reports will enhance the investigators ability to provide testimony, often several years after the investigation was conducted.  In civil matters the investigators case is only temporarily closed, until the litigation is finally settled.





[1] Investigating Automotive Product Liability Claims; Warren J. Sonne, PI Magazine, issue/vol 70, Nov/Dec 2003

[2] Evidence, clear and convincing. The ‘Lectric Law Library’s Lexicon,

[3] Miranda v. Arizona 384 U.S. 436 (1966)

[4] Mapp v. Ohio, 367 U.S. 643 (1961),


[6] Webster’s New World Law Dictionary Copyright © 2006 by Wiley Publishing, Inc., Hoboken, New Jersey.


[8] West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

[9] US Legal, Inc.,

[10] ABA Model Code of Professional Responsibility (1983),


[11] Search The Definitions;negligence

[12] “Vicarious Liability.” West’s Encyclopedia of American Law. 2005. 9 Mar. 2010

[13], The People’s Law Dictionary by Gerald and Kathleen Hill

[14], The People’s Law Dictionary by Gerald and Kathleen Hill

[15] New York State Title 19 NYCRR, §173.1 (a)

[16] New York State Title 19 NYCRR, §173.1 (b)

[17] Doyle, Sir Arthur Conan, The Adventure of The Red Headed League

[18] Doyle, Sir Arthur Conan, The Adventure of The Red Headed League

[19] Investigating Automotive Product Liability Claims; Warren J. Sonne, PI Magazine, issue/vol 70, Nov/Dec 2003