The following excerpt is from our book A Lawyer’s Primer for Writers: From Crimes to Courtrooms, which ran in the September issue of First Draft, the national Sisters in Crime – Guppies newsletter. This excerpt is a section from the chapter on private investigators.
A Lawyer’s Primer for Writers: Private Investigators
Copyright © 2014 by Colleen Collins, All Rights Reserved
Many private investigators work with attorneys, some exclusively. For example, a divorce attorney might hire a PI to conduct surveillance on a client’s almost-ex spouse to obtain evidence of drug use, or a probate attorney uses a PI to investigate for signs of financial fraud, or a business litigation firm uses PIs to conduct extensive background checks on companies.
Despite these legitimate investigative tasks, people often assume that private investigators are all like the fedora-wearing Sam Spade: Smirking, boozing, lawbreaking and philandering. A holdover image from those 1940s and 1950s noir movies. You should temper those clichés with some realism if you want to write a plausible, contemporary PI in your story.
Let’s look at a list of peeves that real-world PIs have about their fictional counterparts.
Real-Life PIs’ Nits About Fictional PIs
Several years ago, we conducted a survey among our PI peers as to what misconceptions they’d like to correct in representations of PIs in novels, movies and TV shows. Below are some of their responses:
– Staying Legal: At least 80 percent of the PIs brought this up as their number one pet peeve. They didn’t like that fictional PIs were often depicted doing illegal things when, in actuality, real-life PIs abide by the laws. Because if they don’t, they could lose their business and license, a risk no PI wants to take. If a PI doesn’t know his legal rights, he knows how to look up the statute or he has a lawyer buddy/client he’ll call for advice. No smart PI goes into a legally-murky situation without knowing exactly what actions are lawful. Slip-ups and missteps muddy a PI’s reputation, which is perhaps her most critical asset because it reflects both her ethics and skill.
– Surveillance fantasies: Seasoned PIs scoff at the notion that a solitary PI can effortlessly pull off an hours-long mobile surveillance, also called a rolling surveillance, which refers to driving or riding a vehicle during a surveillance. Mobile surveillances typically require at least two PIs in two vehicles, and even then the success rate, per one PI’s statistics, is 50 percent. PIs we interviewed laughed about fictional PIs who magically follow someone who’s weaving in and out of traffic, turning, speeding, zipping through intersections for an entire day! Try following one of your friends in traffic (especially when you do not know their destination) and see how easy it is to lose their car.
– Business savvy: PIs felt that too many PI stories ignored the fact that a PI runs a business, which entails negotiating and writing contracts, managing money and sometimes subordinate PIs, buying/upgrading office equipment, writing reports and so on. First and foremost, a PI has a business relationship with her client that includes all the legal ramifications that come with any customer situation.
– Violence: Although some real-life PIs have had violent episodes in the course of an investigation, they pride themselves on never hitting people first, even if they are mad, as is often seen in books and film. Real-life PIs don’t engage in violence anymore than they engage in burglary or theft. There are often discussions within the PI community as to whether or not they should carry guns or other self-defense weapons.
– Goin’ It Alone: Real-life PIs frequently work alone, without Sam Spade’s ubiquitous gal Friday or Jim Rockford’s wise, ex-trucker father. In fact, many PIs work out of their homes, with their websites functioning as their virtual offices.
– Make It a Whiskey, Neat: Real-life PIs don’t all drink like Phillip Marlowe or Sam Spade, and if they were to be slipped a mickey or hit with a sap, they’d be ashamed of their lack of planning. Most real-world PIs wouldn’t chance dulling their senses as this could be used to denigrate them should they have to testify in court about their observations.
Here’s a few additional things a real private investigator would never do as it could mean losing his/her license, career and reputation:
– Knowingly assist a criminal in a criminal act.
– Get involved with jury/witness tampering (which means to threaten a witness/juror so as to change testimony or a verdict).
– Wiretap (which means to secretly listen to or record electronic transmissions, such as downloading a listening app onto someone else’s smartphone).
– Place a surveillance camera or microphone in a private place without the target’s knowledge (known as eavesdropping, which is to overhear, record, amplify or transmit any part of others’ private communications without the consent of at least one of the persons engaged in the communication).
– Commit a burglary.
– Slap a GPS device on a vehicle not registered to the client.
– Use violence or the threat of violence to get information.
– Pretend to have evidence that doesn’t exist (the possibility exists that the PI is going to be asked to produce it by a lawyer or cop).
– Impersonate a peace officer, physician or someone representing a financial institution.
– Commit any other knowingly illegal act.
After saying all this, seven or so years ago we encountered a PI who, in the course of serving one lawsuit, violated five of the above prohibitions. He illegally entered a home while impersonating a peace officer, brandished a firearm, and threatened and assaulted one of the persons for whom he had been hired by an attorney to serve legal papers. To add even more dark complexity to the story, this attorney knew the PI had prior felony convictions when he retained him to serve the lawsuit. In fact, this attorney was also representing this PI in upcoming civil and criminal trials!
Why would an attorney knowingly hire a criminal, you might ask? Basically, the lawyer was cutting financial corners by using a PI who owed him money for past legal representation. He also knew this PI was tough, sometimes violent, and would likely get the attorney the results he wanted. Unfortunately, the lawyer thought he could get by with it, until someone (actually, another PI) decided to run a criminal background check on the PI and learned he had a criminal history with multiple convictions. To bring this story up to date, we recently learned this attorney is suspended and facing disbarment.
Low-life shamuses, dirty lawyers, dark motives…once again, terrible stuff in reality, but fantastic for fiction.
In our investigations business, we had several people, including a lawyer, ask us to do illegal things. We’ll share some of those stories next.
When PIs Are Asked to Break the Law
Back when we worked full time as private investigators, there were a handful of potential clients who asked us to do something illegal. For example, one guy (we’ll call him John, a fictitious name) asked us to “put some muscle” on a man who’d confiscated John’s yellow Ferrari. As if we ran some kind of Tony Soprano “waste management consultant” business.
After we politely explained that we didn’t do muscle, but were a legitimate private investigations business, John asked if we’d drive by a certain home address and just let him know if a Ferrari was parked there. We agreed to do that as that was a legitimate request.
Later, as we drove past the house, we noticed the garage door was closed. We couldn’t walk up the driveway to look in the windows of the garage as that would be trespassing; however, we could see the top portion of what looked to be a yellow vehicle parked in there, so we attached a long-distance lens on our camera and zoomed in on a shot of the window — yes indeed, inside that garage sat a yellow Ferrari. We sent the photo to John, who said he was “flyin’ out to get back my car.”
Like many of our investigative cases, we don’t know how that story ended, although we’d bet good money that John got back his yellow Ferrari.
Illegal Requests to Attach GPS Devices
Many of you probably know what a GPS device is, but for those who don’t, it is a small device that receives its location and time information via signals from a space-based satellite navigation system. At the time we used GPS devices in our PI agency, we used real-time devices, meaning we could instantly track the location of the vehicle to which the device was attached. Tracking required an unobstructed line of sight to the GPS satellites, so if a car was parked in a garage or in a remote region such as in the mountains, for example, we could lose the signal.
Tip for Writers: Colleen wrote an opening scene in one of her novels, The Next Right Thing, that showed a PI attaching a real-time GPS tracking device underneath a truck. That scene, plus links to other articles about attaching/locating GPS devices, is in this article: “How To Attach A GPS Device Underneath A Car.”
We had more than one person call our PI agency and ask us to plant a GPS device on someone else’s vehicle. We would explain that we weren’t into committing felonies, and it would be wise for them to not hire anyone who agreed to track a third-party’s vehicle because if caught, all of them could end up in jail. We know a PI who took such a case and got caught — cost him over $8,000 in legal fees for his lawyer to keep him from going to prison.
Illegal Requests to Commit Wiretapping
More people have smartphones these days, but “back in the day,” which actually wasn’t so many years ago, most of us were using cell phones. Remember them? We now think of them as stand-alone cell phones.
We had numerous people ask us to download listening software on a subject’s cell phone — as if we had a secret stash of spy-listening software to do that with! We’d explain that what they were asking us to do was illegal, so no thank you. Sometimes people would respond, “But there’s ads for this spyware on the Internet!” As if an ad made an act legal. We’d explain that if they were to purchase that spyware and download it onto someone else’s phone without their consent, they would be committing wiretapping, a federal offense and a state crime, both of which were felonies.
If you’re setting your story in the 1990s, even the early 2000s, there were many ads in magazines and on the Internet for cellphone spyware that a buyer could download on someone’s cell phone and listen to all their conversations. Some of this spyware also allowed the listener to hear conversations that occurred in the vicinity of the phone, even when the cell phone was turned off! Powerful stuff to use in a story.
Illegal Requests to Commit Burglary and Theft
Probably our most uncomfortable request came from a lawyer, whose name we won’t mention. He asked us to enter a home and take something from it under a false pretense. Uh, hello? We reminded the lawyer that the law calls those actions burglary and theft. His response? “Well, use your own judgement.”
We did. We turned down the case.
Using Shady Business in Fiction
Imagine how it bumps up the stakes in a story for a fictional sleuth, knowing he/she is committing a felony, does it anyway. They illegally track a stranger’s car with a GPS, knowing they could end up in prison if caught, but they’re doing it for a compelling reason (to save a child, for example). Adds complexity and tension to the story, doesn’t it? Or the sleuth goes into the legally gray zone and purchases that illegal cell phone software as a last means to track a killer.
Tip for Writers: Know what is legal and what isn’t before you write about something a PI does. Because if your PI character blithely commits a felony, you’re taking the chance that your sleuth comes across to your readers as naive about the law, or maybe just plain dumb. Besides, it cranks up the tension for a PI character to consider the ramifications of possibly going to jail for an action, but he is willing to risk that fate because this action could save a person’s life. To check the legalities of an action, contact your state professional PI association with your question. Also, the Professional Investigator Magazine offers an email address for its “Ask a Private Investigator” service.
Now that we’ve discussed work PIs should never do, let’s talk about the work they really do. Legally.
Like lawyers, private investigators have many different kinds of specializations in their line of work — here’s just a few: Executive protection (or working as a bodyguard), arson investigations, finding missing persons, computer forensics, background checks, infidelity investigations, genealogy and death investigations. For this book, however, we’re primarily interested in PIs who work closely with lawyers in their preparations for trial. This type of PI specializes in legal investigations.
Keep in mind that lawyers don’t necessarily call these PIs who aid them in trial preparation as their legal investigators — attorneys typically refer to them as private investigators or just investigators.
Let’s take a closer look at legal investigations.
What Is a Legal Investigator?
Let’s start with the general understanding that an investigation is the gathering of facts to form a cohesive and well-reasoned picture of a given situation. Legal investigations refers to the gathering of facts for a given situation with the addition that these facts will be presented in a court of law.
Here is the National Association of Legal Investigators’ (NALI’s) definition of a legal investigator:
Legal investigators are licensed private investigators or law firm staff investigators who specialize in preparing cases for trial for attorneys. Their job is to gather information and evidence which advance legal theories to benefit the client’s case. The legal investigator must possess knowledge of statutory and case law, local rules of court, civil procedure, forensic sciences, techniques of evidence collection, and its preservation and admissibility.
Legal investigators assist attorneys by reviewing police reports and discovery materials, analyzing and photographing crime or accident scenes, interviewing parties and witnesses, performing background investigations, preparing documentary and demonstrative evidence, recommending experts, and testifying in court. Legal investigators must exhibit the highest standards of professional and ethical conduct.
Keep in mind that a legal investigator applies her evidence/fact gathering through exacting requirements, called rules of evidence, which must be met for their admissibility for the judge and jury to see and hear.
General Overview of a Legal Investigator’s Tasks
Some of you may be familiar with the PI character Kalinda Sharma on the TV series The Good Wife. This is an example of a legal investigator who works in-house at a private law firm. The investigator will have an office, or share an office with another investigator or legal professional. As attorneys need the services of an investigator, they’ll contact their in-house PI to schedule the task.
Other legal investigators might work exclusively for public defenders’ offices or district attorneys’ offices. As there is a lot of investigative work needed for these types of agencies, these investigators would likely have offices within these organizations.
Then there are legal investigators who work as independent contractors, typically under the umbrella of their own investigations agency. Some of these PIs might have their own offices, and some might work out of a home office. We never knew any PIs who had virtual offices, such as with a law firm, but that’s entirely possible, too.
Wherever a legal investigator works, below is a basic list of their common work tasks:
– Locating and interviewing witnesses
– Drafting witness interview reports for attorneys
– Reconstructing scenes of crimes
– Helping prepare civil and criminal arguments and defenses
– Serving legal documents (process service)
– Testifying in court
– Conducting legal research (for example, drafting pleadings incorporating investigative data, devising defense strategies and supporting subsequent legal proceedings)
– Preparing legal documents that provide factual support for pleadings, briefs and appeals
– Preparing affidavits
– Electronically filing pleadings.
Legal Investigators’ Training
Legal investigators’ skills and education often include:
– Good people skills, a sincere interest in people
– Understanding people’s rights to privacy, city ordinances and statutory laws
– A passion for righting wrongs.
An Example of a Legal Investigations Agency
As we’ve mentioned, at our former private investigations agency we primarily conducted legal investigations. Below is a list of services we listed on our website, all of which pertain to legal investigations. Next to each service are examples of the kind of law practices for which we did that work:
– Asset Search: Often divorce attorneys would ask us to check the assets of a client’s husband/wife, sometimes to see what money the soon-to-be ex-spouse might be hiding. At times we also conducted asset searches for probate lawyers to determine if a family member was suddenly buying high-ticket items they couldn’t afford, indicating they might have surreptitiously taken money from a family trust.
– Background Research: Many different kinds of lawyers would request background research on an individual or a business, including criminal defense, personal injury, divorce and business litigation lawyers.
– Court Records Search: Similar to background searches, many different types of lawyers requested court records searches, including divorce, personal injury, DUI, business litigation and personal injury law firms.
– Expert Witness Location: Although different types of law practices use PIs to locate expert witnesses, we primarily received such requests from personal injury and defense lawyers.
– Criminal Records: We would primarily look up criminal court records for divorce and defense attorneys.
– Domestic Relations: Divorce attorneys would request us to conduct different investigative tasks for their clients who were in the process of a divorce. Such tasks included surveillances, trash hits (literally this means to check a person’s or business’s garbage for evidence), as well as retrieving criminal records and conducting background checks.
– Drunk Driving Defense: We worked with several attorneys who specialized in drunk driving defense. For them we would retrieve DMV, court and criminal records, as well as conduct surveillances and trash hits.
– Financial Fraud: Primarily probate, business, divorce and defense attorneys hired us to investigate possible financial fraud.
– Personal Injury: Obviously, this refers to personal injury lawyers who hired us for such tasks as witness interviews, scene documentation, surveillance and background checks.
– Process Service: Primarily, divorce attorneys hired us to deliver, or serve, divorce papers on behalf of their clients. We also served legal papers for probate, personal injury, defense and business law firms.
– Mitigation Packages: Criminal defense attorneys sometimes, but not often, hired us to research and prepare these reports. Chapter 16 has more information about mitigation packages.
– Skip tracing: This term is industry jargon for finding people, also informally called locates — as in “I want to hire you to do some locates” — which we did for all kinds of law firms, but primarily for criminal defense attorneys.
– Surveillance: We mainly conducted surveillances for divorce attorneys, but occasionally received surveillance requests from defense, business, personal injury and probate attorneys.
– End of Excerpt: The above information is a section from the chapter on private investigators –
Praise for The Zen Man
"Great humor. Great dialogue. Author did a great job of establishing the relationship between Rick and Laura. It never overshadowed the mystery, but it made the book truly multi-dimensional."
~New York Times best-selling author Dorien Kelly
"A real page turner. I enjoyed this book full of suspense and surprises. I have never read this author before but will look for her next surprise."
Interviews & Articles
2015 Aspen Gold Award Winner
"I loved The Zen Man and really had fun catching Rick and Laura's first case in the prequel, The Ungrateful Dead. These novels have everything I love in a mystery: smart dialogue, a flawed hero, a little romance and a great plot. Murder at a coroners conference? What could be more fun!"
~ Nancy Warren USA Today Bestselling Author of The Toni Diamond mysteries