What should I consider when engaging an external investigation service as a lawyer?
For a lawyer, outsourcing is a significant decision, so it’s critical to choose a legal investigation service that will comply with relevant legislation, regulations and rules
When you’re juggling a significant legal workload, it makes sense to look for ways to work smarter. When an investigation is needed, outsourcing is often an excellent solution. However, your investigator must be independent, skilled, and have an excellent knowledge of relevant laws and requirements.
What types of legal issues are commonly investigated?
For workplace, insurance and personal legal issues, independent investigations often fall into three main categories: factual, desktop and surveillance.
Factual investigations typically focus on gathering evidence, especially documents and witness statements. Their scope can be broad or narrow. Factual investigations can be used for a range of legal issues, including:
- Workplace safety investigations
- Workplace disciplinary investigations
- Work injury investigations
- Suspected insurance fraud
- Motor vehicle accident claims
- Criminal defence cases
Desktop investigations usually involve skip tracing – locating persons of interest. These investigations can be used in circumstances including:
- Locating a witness
- Debt recovery
- Locating beneficiaries of a deceased estate
- Locating persons of interest for litigation, for example, fraud or misconduct
- Locating a person who is avoiding service of documents, for example, in a divorce action or child maintenance proceedings
Once a person of interest is located, service of documents may be required. An appropriately trained investigator can conduct the investigation and ensure documents are served in compliance with relevant court rules.
Surveillance investigations involve observation. Circumstances requiring surveillance may include;
- Family law matters, including claims of infidelity or parenting matters
- Suspected breach of work injury restrictions
- Suspected fraudulent work injury claims
What are the benefits of using an independent investigator?
One of the most obvious benefits of using an independent investigator is time. Outsourcing the investigation frees you to attend to other issues or clients. It’s often also a more cost-effective solution for your client, whether your investigator is working on an hourly rate or providing a fixed-cost service (for example, skip tracing and process serving are often fixed-cost).
Procedural fairness is critical if your client needs a workplace investigation, such as a safety or misconduct investigation. Engaging an independent investigator is an effective way to ensure that the investigation is, and appears to be, unbiased. For this reason, it’s also vital that the investigator reports back to you with evidence only, not opinion or recommendations.
Engaging an independent investigator may also help witnesses feel more at ease about providing a statement because investigators can remain at arm’s length.
What should I consider when engaging investigation services?
External investigation services for lawyers can vary significantly from service to service. When considering whether a service can meet your law firm’s needs, we recommend that you consider:
The investigator’s knowledge of any legal and regulatory issues that may impact the investigation
- Do they understand privacy laws and requirements?
- Do they understand trespass laws and private property limitations?
- Are there any legislative limitations on checking public records?
- Are there any other restrictions that may impact the investigation, such as Civil Aviation Safety Authority (CASA) restrictions when using drones for surveillance?
- Will NSW surveillance device laws impact the proposed investigation?
- Is the investigator aware of court rules for service of documents, and does the investigator provide sworn affidavits of service?
The investigator’s ability to act efficiently and with flexibility
- Can the investigator meet your timeframe?
- Is the investigator flexible enough to adapt the investigation if circumstances change?
- Can the investigator make suggestions for alternative investigation methods if problems arise?
Does the investigator hold the necessary licence and have relevant training?
In some circumstances, an investigator should be licensed, for example, for process serving and surveillance. Before engaging an investigator, we recommend that you ask them for proof of the appropriate licence.
Other training can indicate a commitment to updating skills and keeping pace with technological developments, for example, cyber intelligence qualifications for skip trace investigations.
Will the investigator act with discretion and care?
Investigations are sensitive for many reasons. The investigator must act with discretion and sensitivity during all stages of the investigation. Examples include;
- Being entrusted with a client’s confidential information
- Caring for vulnerable people during their participation in the investigation
Before engaging an investigator, we recommend that you question them about any measures they will take to ensure discretion and care for everyone involved in the investigation.
How will the investigator present evidence and information? Will the investigator act with discretion and care?
Check how the investigator will provide information to you. Will it be a written report? Or witness statements? How will the documents be presented? If you have particular requirements, the investigator should be flexible enough to accommodate them. Check that the investigator will refrain from providing opinions or conclusions so as not to jeopardise the integrity of the investigation and the conduct of any legal proceedings.
How will the investigator communicate with you?
Communication is essential for any investigation, especially when you’re reporting back to your client. Do you need to wait for them to give you updates? Is there a risk that you’ll have to chase up this information? Or does the investigator use software that gives you access to real-time updates? Check how the investigator proposes to communicate with you.
Investigation services for lawyers can often be a vital part of a legal matter, whether proceedings have been issued or initial leg-work is required to work out how best to proceed. Factual, desktop, and surveillance investigations can all play a role, depending on the need for depth of evidence. However, not all investigators are created equal. To find an investigator compatible with your needs, ask particular questions and scrutinise their offerings to ensure the investigation is:
- Procedurally fair
- Focused on uncovering the truth