Dispatch from a special panel on investigators and litigation

Earlier this month, I had the pleasure of participating in the Bar Association of San Francisco’s panel, The Use of Investigators in Litigation: Gumshoe Edition. This wide-ranging discussion moderated by San Francisco Deputy City Attorney Rebecca Bers, also featured Keslie Stewart, head attorney of the San Francisco City Attorney’s office, public integrity unit, and San Francisco Superior Court Judge Mary E. Wiss. 

Covering everything from investigations during COVID to the role of investigators in litigation, here are some highlights from this exchange of ideas.

Topic #1: Has COVID changed your practice as an investigator? Or as a judge? 

Bruce Gerstman: 

“When it comes to on the ground investigations, there’s a new expectation. You go to someone’s door and you knock on their door. And now you don’t wait on their doorstep. You back up, you’re like 20 feet away. And you’re waiting for them to open the door, to talk to them. And the pandemic has set up this scenario that it’s just less intimidating. The person’s not on your doorstep. And people are more reliably just chatting with you, whereas before they might be like, “All right, get off my doorstep, go away.” So, that’s been a pleasant surprise that I can see continuing after this is over.”

Keslie Stewart:

“With respect to interviews of employees, we’ve actually found that doing them online has worked really well. I was surprised at how much you can still see someone’s face, read their emotions and really get a feel for credibility. And I think when you’re doing a lengthy set interview, it’s better to do it in COVID online than in person, precisely because of the mask issue. You can see people’s faces and read their lips…

And the one thing that we’ve had to adjust to is you really need to communicate what you’re doing because no one can see your hands, right? In a room, we see everything that a person is doing. And so, you just need to be cognizant of explaining, “I’m looking down, not because I’m ignoring you, I’m looking at my outline. Or I need to…” So, you just have to talk through what you’re doing to put people at ease, so they understand what’s going on for the parts that they can’t see.” 

Honorable Mary E. Wiss

“Of course, what we’re all grappling with is, in a courtroom we must observe masking and social distancing. So, we’re being dragged into the 21st century with new technology. But in terms of witnesses and observations, it’s very difficult, if someone is masked to determine what their reaction is to the questions that are being asked, are they grimacing or are they grinning? And how are they responding to the question?”

Topic #2: What is the role of investigators during litigation?

Keslie Stewart: 

“I think in all things, a lot of what investigators do and they have a skill set that not all lawyers have, which is to develop trust and a relationship with witnesses and get them to talk. So, sometimes Bruce, correct me if I’m wrong, but it’s an ongoing process. You might have a few phone calls. The person starts to feel more comfortable with you. You get to a place where you say, “Well, I really would like to show you some documents. Do you think we could set up a meeting on…” And then you suggest the platform and you find out what works for them.”

Bruce Gerstman:

“So, we conduct lots and lots of background investigations, for instance. A client and attorney will come to us and say, “We have a witness coming up. We have some party and we really need to understand what they’ve done with their lives.” Really, call the public record, figure out sources to speak with, to really understand them. And that’s like a big part of what investigators do in general.

But then there’s also what we’re calling the Gumshoe version of what investigators do, where there’s going out and finding people and finding information through more of that people trail. And we’re also pulled into cases to do a lot of that as well. And there’s work to do like before a case and during a case, and after a case with all of that.”

Honorable Mary E. Wiss: 

“I would add that, I think there are many reasons why you would want an investigator right off the bat from beginning to before the time your case is even filed, until after your jury returns its verdict. Investigators are professionals. And unless as a lawyer you’ve been trained in investigation or law enforcement, or have some background on those skills, it’s really beneficial to your client to be able to use the expertise of a qualified and reputable investigator.”

Topic #3: What are some special skills that investigators bring to the table when finding information?

Bruce Gerstman: 

“There’s another skillset that’s common in investigations. And that’s my background in journalism and the research kinds of skills, where there’s finding people and talking to them. It’s just a different vibe that’s given off, when you’re doing that. And there’s a difference, like journalists for instance, have never really had the power of subpoena. So, they try to figure out creative ways to get information that has been very natural to law enforcement.

It’s common that I’ll interview someone. And then I will put together notes. And these are my thoughts and impressions. And I will make it clear in an email, but this is not a report. These are my thoughts and impressions. And certain attorneys are very comfortable getting that and using that as just privileged communication that we’re having. This is not a report. These are just my general impressions of the interview. And I keep annotating it that way.”

Keslie Stewart:

“I’ve learned over 20 years now that it’s really helpful to have a non-attorney perspective. And so, one of the best things that you get out of having an investigator on your team is just how is a regular person going to view this? Who are they finding sympathetic or appealing, or what makes sense to them? Because they’re not as focused on the technical legal requirements and more just on like, what’s your gut reaction to this? And that’s valuable…

So, take the time to sit down with your investigator when you’re choosing them, after you’ve chosen them. And you want to talk about what kinds of tasks they’re going to be able to help you with. Because they also have great ideas about how to get evidence and how to develop a case that you may not even have thought about. They’re a great resource.”