Law Times

law Times • July 25, 2011 FOCUS PAGE 13 Protecting PIs from court challenges Neutral language, documentation, debriefings key to avoiding legal liability BY DARYL-LYNN CARLSON For Law Times or incompetence should the matter end up in the courts. Th is is due to the fact that judges will place greater T scrutiny on the case in order to ensure that the inves- tigator was compliant with all rules and laws and had ample experience and training in the area relevant to the investigation. As a result, most investigators are making sure they comply with all legislative requirements as their work becomes more complex. In particular, they're focusing on avoiding confl icts of interest and any confi dentiality breaches to ensure their work doesn't end up in court. Dean Benard, president of Benard + Associates in Waterloo, Ont., affi rms that investigations are indeed becoming much more complex and that there are several ways for an investigator to land in hot water as a result. He delivered a presentation at a conference for private investigators in Chicago on May 25 that focused on the ways they can get into trouble and have an investigation challenged in court. "Any investigation has to be conducted with a level of neutrality, and a good investigator is always going to be looking for information that sheds light on the question at hand," says Benard. He notes that investigators face many challenges when conducting a complex investigation and must document every detail precisely and objectively. "It is very impor- tant for an investigator to be neutral in all of the informa- tion," he says. Benard adds that all investigators should back up their information with multiple copies related to their work. Th ey should also keep a log or daybook that specifi es the here are many legal issues that private inves- tigators must consider in order to protect an investigation from allegations of impropriety date and time they gathered the information should the matter end up in court. As well, all reports must be in neutral language to en- sure the respective lawyer can use the materials to en- hance the client's case. "It is very important that an in- vestigator does not appear to be on one side or the other," Benard says. "Th at way, you can be of greater assistance to a lawyer." David Debenham, a partner at McMillan LLP in Ottawa and also vice president of the Association of Certifi ed Forensic Investigators of Canada, agrees that investigators have to be both experienced and objective in order to be of assistance to lawyers. He says that some of the most diffi cult types of cases for investigators are those related to professional malpractice. "Professional malpractice cases are diffi cult in court as you generally need an expert witness in the same profession to testify, and that can present its own evidentiary diffi culties," says Debenham. According to Debenham, there are two situations where investigators could be detrimental in a court mat- ter: those where the investigator has too little training and experience and those where the investigator has too much experience and can make problematic assump- tions as a result. He notes that investigators retained by a lawyer should have ample experience and credentials and be knowledgeable of those cases where evidence is "sparse, ambiguous or otherwise open to interpretation," particularly in the event it's subject to challenge. If pos- sible, they should also try to "defer reaching conclusions until suffi cient data has been collected," he adds. Ideally, investigators should be able to document the steps they take during an investigation to show what al- ternative theories were investigated and what steps they took to disprove the suspect's guilt and test all of the evi- dence. Also, investigators should conduct thorough de- briefi ngs of all investigations with their colleagues and perform a full-scale autopsy on the fi ndings to ensure 'It is very important that an investigator does not ap- pear to be on one side or the other,' says Dean Be- nard. certainty for future work, Debenham says. As vice president of the association, he acknowledges that private investigators are prone to lawsuits. "An inves- tigator in any fi eld or profession feels hard done by when they get sued but they can get off the rails by admitting that they made an assumption," he says. "It's important that the law is there to teach a moral lesson and compen- sate the plaintiff ." Debenham adds that anyone, particularly lawyers, in- tending to hire private investigators should thoroughly research and interview them to ensure their credibility and avert any chance of facing problems later on. "It is very important for lawyers to be aware of who they are depending on for evidence should the matter end up in court." Untitled-1 1 www.lawtimesnews.com 7/19/11 12:19:18 PM

• Cover
• Estates Ruling
• Maverick Retires
• Focus On Forensics/Private Investigators