One lawyer we know has a stock answer when clients ask him how good their case is: “I don’t know. The courts are the most lawless place in America.”

What he means is that even though the law is supposed to foster predictability so that we will know how to act without breaking our society’s civil and criminal rules, there is a wide variety of opinion among judges even in the same jurisdictions about the matters that make or break a case on its way to a jury.

Our friend’s answer came to mind while reading an interesting roundup of experienced trial lawyers over the weekend about why the trial of Bill Cosby outside Philadelphia resulted in a deadlocked jury and mistrial, announced on Saturday.

In the New York Times, the attorneys mostly fell into two camps: those who thought lead witness Andrea Constand presented the jury with credibility problems because of inconsistent testimony, and those who thought the judge’s decision to limit the admission of evidence of many other similar allegations substantially weakened the prosecution’s case.

My view is that the two reasons are linked: evidence that many women have made claims similar to Constands’ could easily have overcome the credibility problem if the jury had been able to hear about many of the other women who alleged Cosby had drugged and had sexual contact with them too.

In another case with identical facts and a different judge, the other accusers may have made it in a great example of two things we tell clients all the time:

  1. Persuasive evidence is good, but admissible evidence is what you really want when you know you’re going to trial.
  2. A lot of legal jobs are now being done by computers, but while there are human judges they will differ the way humans always do: in a way that is never 100% predictable.

Admissibility

When we are assigned to gather facts in civil or criminal matters, all of the evidence we get must always be gathered legally and ethically. Otherwise it could easily turn out to be inadmissible. But even if you do everything right, admissibility is sometimes out of your control. The whole case can turn on it.

If all you are doing is trying to get as much information as you can without any thought of taking it to trial, then admissibility may not be much of a concern. Think about deciding whether someone is rich enough to bother suing using hearsay evidence; or finding personally damaging information that may be excluded as prejudicial, but even the thought of arguing a motion about that information would be too much for the other side to bear. It could increase the chance of a more favorable settlement for you.

In the Cosby case the information in question would have been very helpful to the prosecution.

Ordinarily the justice system doesn’t like to see evidence of other bad acts used in a case to paint a picture of  a defendant’s character. Rule 404 (b) of the Federal Rules of Evidence excludes this kind of thing, but allows admission of evidence of another act “as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

So the prosecution could have argued that all the other accusers making similar claims that they were drugged and subjected to sexual contact were evidence of Cosby’s intent, or a lack of accident, and may even have been seen as preparation for the time Constand went to Cosby’s home and was drugged.

But the judge wouldn’t let any of that in. In Pennsylvania, the rules in this section are tougher on the prosecution than are the federal rules. The state’s rule 404(b) (2) “requires that the probative value of the evidence must outweigh its potential for prejudice. When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether and how much such potential for prejudice can be reduced by cautionary instructions.”

It seems that the judge was afraid that even warning the jury not to read too much into the other accusers would have prejudiced them even if he instructed them that the other accusers alone did not constitute proof of Cosby’s guilt — in this matter with Constand.

Unpredictability

The legal world is justifiably occupied in trying to figure out how to reduce costs by automating as many tasks as possible. Gathering of some facts can be automated, but not always, for the simple reason that facts are infinitely variable and therefore not wholly predictable.

Implicit in fact gathering is evaluating the facts you get, as you gather them. You are constantly evaluating because you can’t look everywhere, so promising leads get follow-up, the others don’t. Machines can scan millions of documents using optical character recognition because there are only so many combinations of letters out there. But the variety of human experience is limitless.

If machines can’t be trusted to properly evaluate someone’s story, imagine the problems if that story has never been written down. Think about all the things you would not want the world to know about you. How much of all of that has been written down? Probably very little. It was human effort alone that developed the other witnesses the prosecution wanted to call.

The only way a computer might have helped in this case would have been to predict – based on prior cases – which way the judge would rule in excluding the other evidence. Even that would be a tough program to write because these decisions turn on so many unique factors. But since judges are chosen at random, it wouldn’t have helped shape the decision about whether or not to charge Cosby.

Want to know more about our firm?

  • Visit charlesgriffinllc.com and see our two blogs, this one and The Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.
  • If you are member of the ABA’s Litigation Section, see my piece in the current issue of Litigation Journal, “Five Questions Litigators Should Ask: Before Hiring an Investigator (and Five Tips to Investigate It Yourself).

Lawyers need to find witnesses. They look for assets to see if it’s worth suing or if they can collect after they win. They want to profile opponents for weaknesses based on past litigation or business dealings.

Every legal matter turns on facts. Most cases don’t go to trial, fewer still go to appeal, but all need good facts. Without decent facts, they face dismissal or don’t even get to the complaint stage.Better innovation in law firms

Do law schools teach any of these skills? Ninety-nine percent do not.  Good fact-finding requires something not taught at a lot of law schools: innovation and creativity. Of course, good judges can maneuver the law through creative decisions, and good lawyers are rightly praised for creative ways to interpret a regulation or to structure a deal.

But when it comes to fact gathering, the idea for most lawyers seems to be that you can assign uncreative, non-innovative people to plug data into Google, Westlaw or Lexis, and out will come the data you need.

This is incorrect, as anyone with a complex matter who has tried just Googling and Westlaw research will tell you.

The innovative, creative fact finder follows these three rules:

  1. Free Yourself from Database Dependency. If there were a secret trove of legally obtained information, you would be able to buy it because this is America, where good products get packaged and sold if there is sufficient demand for them. And Google won’t do it all. Most documents in the U.S. are not on line, so Google won’t help you. For any given person, there could be documents sitting in one of the more than 3,000 counties in this country, in paper form.
  • If you use a database, do you know how to verify the output? Is your John C. Wong the same John C. Wong who got sued in Los Angeles? How will you tell the difference? You need a battle plan. Can your researcher arrange to have someone go into a courthouse 2,000 miles away from your office?
  • How will you cope with conflicting results when one source says John C. Wong set up three Delaware LLC’s last year, and another says he set up two in Delaware and two in New York?
  1. Fight Confirmation Bias. Ask, “What am I not seeing?” Computers are terrible at the kind of thought that comes naturally to people. No risk management program said about Bernard Madoff, “His auditor can’t be up to the task because his office is in a strip mall in the suburbs.”
  • For your researchers, find people who can put themselves in the shoes of those they are investigating. Not everyone can say, “This report must be wrong. If I were in the high-end jewelry business, I wouldn’t run it out of a tiny ranch house in Idaho. Either this is a small business or Idaho’s not the real HQ.” If someone doesn’t notice a discrepancy as glaring as this, they are the wrong person to be doing an investigation that requires open-mindedness.
  1. Don’t paint by numbers. Begin an investigation on a clean sheet of paper. Don’t base your investigation on what someone’s resume says he did. Verify the whole thing.
  • Look not just at what’s on the resume, but look for what was left off Jobs that didn’t go well, and people who don’t like the person.
  • Despite that your client tells you, they don’t know everything (if they did they wouldn’t hire you). If your client thinks you will never find a subject’s assets outside of Texas, look outside of Texas anyway. You owe it to your client.

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

We pretty regularly find ourselves blogging about small business owners that draw people into scams.  We’ve seen the would-be movie executive, the sweet-talking investment solicitor, the landscaper and the produce company owner. Too often, we find that defrauded consumers and investors could have avoided their losses by doing some basic due diligence.  Sometimes the diligeCollapsed Roof.jpgnce can be as simple as a Google search, while other times it might pay to get an investigator involved.

Not surprisingly, we came across two stories this week and now add a roofing contractor and appliance repair store to our list of alleged (and some convicted) fraudsters.

Michigan roofer Kenneth Bird’s scheme was nothing out of the ordinary.  According to media reports, he took deposits for roofing work from potential clients and then never showed up to actually do the work.  He pleaded guilty to defrauding one couple of $6,125 for a $12, 250 roofing job he never completed at their home.  Colorado appliance repair store, AAAA TV Electronics Vacuum Appliance, allegedly over-charged customers for parts that they did not need, did not receive and some that did not even exist.

So how do you avoid losing money to these kinds of businesses?  In both of these cases, a quick Google search might have done the trick.  The Better Business Bureau had received numerous complaints about each of these companies, a tally of which was readily available on the internet.  In addition, a “Ripoff Report” was posted online about the appliance store and both businesses had some fairly negative reviews on yelp.com.  We tend to be very cautious when relying on internet information.  Most of the time, you don’t know who is behind a Yelp review, Ripoff Report or Better Business Bureau complaint, and not everything you read online is true.  That said, when there are a large number of complaints and/or troublesome reviews online about one company, it should at least give you pause before choosing them for your vacuum repair or roofing needs.

Beyond basic Google searching, it can pay to hire an investigator to go further than what’s available online.  We’ve blogged here about why Google should not be a substitute for thinking and we know from experience that most public records are not available on the internet.  As investigators, we use a whole range of ethical techniques to gather balanced information about people and companies.  This puts our clients in the position of feeling protected against the many fraudsters and scam artists that are out there.

Not one, but two stories of criminals foiled by their own selfies have made the headlines this past week.  Tanya Peele, a 26-year-old Atlanta woman, is accused of setting up a fake business account at JP Morgan, then using that account to steal over $100,000.  When Peele went to withdraw the allegedly stolen cash, JP Morgan’s security cameras caught her on video.  Atlanta police matched the video to selfies she had posted on her Facebook page. 

Criminals Caught by Selfies.jpgMichigan bank robber Jules Bahler pled guilty this week to robbing a Bank of America branch.  Like Peele, Bahler was caught on one of the bank’s security cameras.  Police later identified him through Facebook posts of selfies he took while holding the same submachine gun he used to carry out the robbery. 

One would think that any criminal would want to keep a low profile both online and off.  But criminals are caught because of their online presence all the time (don’t believe me?  Just google “criminal” and “selfie”).  The most famous such case we’ve written about is that of Ross Ulbricht, the mastermind behind the illicit e-commerce site Silk Road.  Ulbricht posted his personal email address on a message board about Silk Road, which eventually led to his arrest.

Most of our clients are lawyers, so we have to be careful when dealing with social media.  Ethics rules prohibit us from reaching out to represented parties on social media or “friending” people under false pretenses to gain information that could be helpful to a client’s case.  In our experience, you often don’t need to be sneaky to find fantastic information. 

We were once able to track down a witness in a case because she posted a picture of herself at a bar on a publicly-viewable social media site.  In the background, we saw the name of the bar reflected in a mirror, tracked it down, and found out that she was a bartender there. 

In fact, we were also able to find the defendant in that case because he obsessively tweeted messages to attractive female talk show hosts.  His geocoded tweets showed that they were coming from California.  Until we found his Twitter account, we weren’t sure whether he was living in California or at his parents’ house in Oklahoma.  Mystery solved thanks to social media!

As part of our comprehensive pre-investigation briefing process, we always ask our clients to identify the target’s e-mail and social media handles.  We have found that HappyGuy73@email.com will also be HappyGuy73 on social media sites and message boards.  In one case, our subject, who was a high-level executive at a very large bank, was involved in running a mud wrestling ring in Nevada.  We found out because he had posted comments on a mud wrestling message board using a social media handle that our clients had given us.    

We have said time and time again that a Google search is never enough for a thorough investigation.  However, it can come in handy when using an individual’s online presence to track down information that they have chosen, however ill-advisedly, to reveal about themselves online.    

The on-line world is abuzz today with news from Europe’s highest court that Google will have to start removing links to certain information that some judge or bureaucrat decides is irrelevant. Even if it’s true and lawfully posted, the governments of Europe now get to decide what’s suitable to read, case by casegoogle EU right to be forgotten.jpg.

We’re written extensively about this issue, including here in The Right to Privacy on the Web. The issue arose in Europe after a lawyer in Spain decided that he was tired of an old newspaper report of his bankruptcy hanging around for years when people searched his name on the internet.

Where this decision will take Europe in the short term is unclear, but if E.U. governments are serious about stamping things out at Google, they will have to think about whether they want to join the free information bastions of China and Iran and start banning entire websites.

That’s because if an offensively “irrelevant” result on Google’s Spanish site, Google.es is made to disappear, anyone in Spain can search on Google.com, which is based in the U.S. The result could still appear there, and at last check the First Amendment was still in effect in this country. Google.com won’t care a bit about the E.U.’s take on press freedom, whatever Google does with Google.es.

Instead of this decision today, there is a much more sensible and fair way to regulate old information about people we don’t want hanging around on the internet: don’t make it public.

  • In the U.S., where more information is public than in any other country, millions of records are deemed to be too sensitive and are sealed. Income tax records are fully public in Norway and Sweden but are off-limits in the U.S. Family law records are sealed in many U.S. states. Do you want to see some rich guy’s separation agreement and other divorce filings? In Florida you can, in New York it’s deemed to be a violation of his privacy and they are not available to the public.
  • Mortgage records are open in the U.S., but in parts of Europe they are not. We could easily do the same: make mortgage information as protected as a credit report so that you only get to check someone’s mortgage if they give you permission during a title search or a credit application.
  • If we don’t like the fact that mug shots stay on the web even if the person wasn’t charged or was acquitted, then let’s not make mug shots public unless the person was convicted.
  • We may think that Bernard Madoff’s accomplices should have links to news reports of their convictions rubbed out after 10 years or rehabilitation in prison, or we may like the idea that they should have trouble getting hired at broker dealers when they get out of jail.

One policy isn’t inherently more reasonable than another – it’s just a matter of public preference.

But what would be truly awful would be to let judges or information commissars decide on a case-by-case basis whose mortgage information, mug shot or tax record is “relevant” and therefore public and whose should be off limits.

That’s the place Europe is now headed. The question of information availability now turns into a zoning application: decided on a case by case basis, effectively unreviewable, and open to a heap of corruption.

Last week, the Associated Press reported that the Department of Justice had obtained confidential phone records for more than 20 telephone lines used by the staff of the Associated Press while investigating leaks of classified information.  Only days later, news surfaced that the DOJ had also accessed the phone records and emails of James Rosen, chief Washington correspondent for Fox News, in connection with an information leak involving Jin-Woo Kim. telephone records.jpg

We have previously talked about phone records in this blog, but the topic bears revisiting in light of recent events. Phone records can be investigative gold, and our clients often ask us to get our hands on them. Our answer is nearly always an unequivocal no. Congress outlawed the unauthorized access of telephone records when it passed the Telephone Records and Privacy Protection Act of 2006

We recommend steering clear of any investigator who promises to find phone records for you.  At the very least, be wary of investigators who will not tell you exactly how they plan to obtain phone records or emails, since it could be a warning sign that they are operating in dangerous territory (pretending to be the person whose records they are requesting, for instance).  Attorneys hiring investigators should be especially careful since the attorney may ultimately bear responsibility for the investigator’s acts. 

We will only review telephone records or emails if our client has a legal right to provide them to us. For example, in a recent matrimonial case, our client gave us legally-obtained phone records for her spouse and asked us to track down any numbers she told us she did not recognize. She was looking for people who may have helped her husband secretly invest money, such as financial professionals or attorneys.  By searching databases and public records, we not only found several brokerage firms and hedge fund managers her husband had contacted, but also a handful of mistresses he had been calling.

tiger woods.pngThere has been no end of snobbery over the years that makes fun of the conservatism of golf: so much space to serve so few athletes, the cost to the environment, the exclusivity of the private clubs, and so on.

But this fascinating New York Times article made clear to me that in one respect, golf is far more democratic – and open to just outcomes – than many other sports. Its dispute resolution is also more like the kind of deliberative and open minded approach we tend to look for in our justice system. Namely, the idea that the testimony of credible witnesses should be admitted as evidence to be weighed by a finder of fact.

For an investigator who tells clients every day that talking to more people gets you closer to the truth than talking to fewer people or nobody, this was nice to see. We’ve written extensively about the power of interviews in Talk Isn’t Cheap Even When Offline  and Good Investigations: A Second Opinion on Almost Everything.

By now, sports fans know what happened at this weekend’s Masters golf tournament in Augusta, Georgia. Tiger Woods broke a rule about where he was allowed to replace a ball that had fallen into the water, but officials missed it. But since this is golf, Woods was penalized after a television viewer alerted Club officials that Woods had broken a rule. A review of television footage confirmed that the viewer was correct.

If a professional hockey player trips an opponent and this isn’t seen by a referee, there is no penalty. A perfect baseball game pitched in 2010 by Armando Galarraga was spoiled because an umpire, Jim Joyce,  made an incorrect decision that was not appealable (even though Joyce knew after watching a replay that he had blown the call).

The “sentence” given to Woods (two strokes instead of disqualification) was criticized as being too lenient, just as civil and criminal penalties can be seen to lack sufficient deterrent effect.

Still, the fact that many people may contribute to gathering evidence should makes golf a little more palatable to those who think it an outdated game with little redeeming value.

 

Clients often ask us whether we tape-record phone calls we make in the course of an investigation. Our brief answer is, “never.” Here is why:

  • Recording could be illegal.

Some states allow tape recording conversations if one of the two people in the conversation is aware that a tape is rolling, but some require that both parties be aware. These include California, Florida, Illinois, Pennsylvania, Massachusetts, Connecticut and several more.

tape recorder.jpgWhat’s the problem with deciding you’re in a one-party state, calling up someone and letting the tape roll? Say the person you are calling has his phone forwarded to a two-party state. Even if you think you are calling someone down the street from you, how are you to know the phone isn’t ringing in Miami or L.A.?

  • Even if legal recording could be construed to be unethical for lawyers. Since we are lawyers, we pay the same close attention to the ethical rules as our clients do.

In a wonderful story in the current issue of the ABA’s Litigation News, (website here but current issue not on line yet), the ABA’s Lisa R. Hasday delivers a thorough  survey of the various ethical rules that govern phone recording. In short, it’s a minefield out there and any decision to tape is one that our clients would need to approve only after some serious reflection and research.

The one-party states fall into four categories.

  1. Surreptitious recording is not unethical  in Texas, Tennessee, North Carolina, Minnesota and a variety of other states. Of course, the same problem as avoiding a two-party state applies: a person sitting in Dallas calls a Houston number with the tape rolling, but the Houston number is answering the call in Orlando. Potential problem.
  2. Surreptitious recording is unethical except in certain circumstances in New York, Virginia, Colorado, Kentucky, Indiana and a few other states.
  3. Surreptitious recording is evaluated on a case-by-case basis in Arizona, Michigan and Wisconsin.
  4. Some states have no position on surreptitious recording. These include Georgia, New Jersey, Nevada, Louisiana and Arkansas, among others.

What’s the big deal courts make of taping when legislatures say it’s OK? It stems from ABA Model Rule of Professional Conduct 8.4(c) which has been adopted in most states, and says that lawyers commit professional misconduct if they “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

According to Hasday’s article, “courts have almost uniformly determined whether secret recording is misconduct based on additional facts surrounding the recording and not merely on the fact of the recording itself.”

The cases in which secret recording is most likely to be allowed involve the limited categories that have allowed attorneys to tell lies in the course of their duties: investigations into intellectual property infringement, housing discrimination, and for a lawyer’s self-preservation.

  • A recording could be legal and ethical, but is it admissible?

The decision to record a phone call is one that should be among the most heavily researched and carefully considered of the thousands of decisions a lawyer makes during the course of a matter. Even then, getting the recording admitted as evidence presents its own set of problems of authentication.

What kind of recorder is it? Is the operator competent? Were there any changes made to the recording? Are the speakers on the call identified? Did they speak without inducement?

Sometimes, making a recording of a phone may be a make-or-break decision in a case. But in our experience, recording has never been important enough to risk breaking the law, professional sanctions, and failure to get the material admitted.

 

GettyImages_106055172.jpgInvestigators need to be familiar with all the ins and outs of social media sites in order to best help their clients.  For example, through social media we’ve tracked down witnesses for litigation and beneficiaries of wills and trusts.  Social media is a great tool for uncovering evidence of adultery in a divorce case.  In addition, social media can provide evidence of intellectual property infringements or corporate policy violations. 

Unfortunately, keeping up with the changes in social media technology may be easier than keeping up with the changes in Internet law.  The legal community and the courts are still trying to figure out how social media, free speech, legal ethics and privacy laws intersect.  In fact, it seems like every other week there is an important judicial decision or ethical ruling regarding how social media can and cannot be used in legal and corporate investigations.

Case in point: earlier this month a federal judge in California significantly curtailed the social media postings that defendant Home Depot could obtain in an unlawful termination case brought by a former employee.  The Southern California magistrate judge explained that the federal rules dictating that electronic document requests be specific and directly relevant to the lawsuit apply to social media postings as well. Therefore Home Depot’s expansive request for all posts that reveal the plaintiff’s emotional state and every photograph she posted on her social media accounts was impermissibly broad.  

So what sort of social media information can investigators working for attorneys obtain for their clients? State Bar associations have been wrestling with this issue for the past several years. The general consensus appears to be that any information that a social media user made publically available to all members of a network can be obtained without restriction. (see the NYSBA Opinion #843 (9/10/2010) and Philadelphia Bar Opinion 2009-02 (March 2009)) This means that everything is fair game if the user’s privacy settings are turned off.

But what happens if the social media user has privacy settings that block access to anyone who is not a “friend?” In those cases clients will ask if we can overcome this pesky restriction and friend the person using an alias. Our answer is always an unequivocal “No, we can’t.”

Legal ethics decisions dictate that neither an attorney nor an agent working on their behalf, like an investigator, can gain access to any secure information if doing so requires either directly or indirectly deceptive behavior. This means an investigator can’t use an alias and pretend to know the social media user in order to be deemed a “friend” and be granted permission to otherwise restricted information. 

Keep in mind that even if the investigator does not use an alias, the act may be deemed unethical.  This is because the investigator has omitted a material fact to the social media user—namely that they were being contacted solely to obtain information for an attorney to be used in a pending matter.

The issue is much more complicated if the social media user is a represented or unrepresented party in a pending litigation.  If the person is a represented party, then under no circumstances can they be contacted without the prior consent of their lawyer.  And if they are unrepresented, then the lawyer can’t claim that they are disinterested in the issue at hand.  Furthermore, if the user is unrepresented, the lawyer has an obligation to correct any misunderstandings as to their role and to ensure that they don’t offer any legal advice if the social media user’s interests conflict with those of the attorney’s client.