by Thomas D. Thacher II
Many of the nation’s largest law firms rely on outside consultants for expert investigative litigation support in their efforts to help win high-profile cases that cannot be avoided or favorably settled. But investigative litigation support should not be limited to the big leagues; it does not have to be a luxury option. The objective of gaining a strategic and tactical advantage over adversaries applies to firms – and disputes — of all sizes. In our firm’s experience, this goal often can be achieved more effectively, in less time, and at less expense through outsourcing to investigative consulting firms than through in-house resources. Firms that specialize in investigative litigation support are ready at a moment’s notice to assemble highly-skilled, multi-disciplinary teams of investigative experts.
Litigators need to know crucial facts, if they are to protect their clients from adverse court rulings, to help resolve unavoidable disputes, to disprove their adversary’s allegations, or to prove their own. In addition to experienced investigators, auditors, data base researchers and analysts, investigative consulting firms bring industry experts into their teams. For example, in legal disputes involving construction, the investigative consultant firm should be able to field a team of experts in general contracting, architecture and engineering, among other disciplines.
Investigative firms will identify witnesses and run background checks on defendants, witnesses and deposition subjects. They will conduct asset searches aimed at determining whether proposed litigation is cost-justified. They can profile individuals and entire corporations by tapping into their vast network of public databases as well as their own proprietary databases. An effective investigative firm will also have a wide network of contacts to draw upon in law enforcement, regulatory agencies, media and private industries, and will have the ability to perform sophisticated computer forensic audits and other types of analysis.
Immediately after a complaint has been filed, a litigation support firm can work with a law firm to plan, strengthen and execute the firm’s strategy – and anticipate an adversary’s strategy. By gathering hard-to-get facts, the investigative consultant can identify weaknesses and points of vulnerability on both sides. Integrity issues affecting your adversary (even if unrelated to the gravamen of the complaint) can help drive settlements. Has the adversary previously engaged in misconduct similar to that which you allege in your complaint? Even if your adversary has a strong case, will it nonetheless be exposing itself to regulatory or law enforcement scrutiny as a result of the investigation?
Because investigative litigation support specialists are often drawn from the ranks of special prosecutors with a “big picture” perspective, they can provide intelligence charts that offer a revealing graphic view of relationships among people, places and important events. In my experience, this powerful courtroom tool illuminates complex and often otherwise hidden relationships, thereby enhancing the overall view of who did what to whom, and how.
The same arsenal of investigative services for litigation support can be equally, if not more, valuable before litigation begins. This is at a time when an investigation can be targeted at developing a complete and accurate account of what happened. Since pre-litigation investigations are not limited by the rules that come into effect once a complaint has been filed (e.g., proscriptions against contact with employees of an adversary), a litigation support specialist may find evidence that cannot be easily obtained later through the usual avenues of discovery. Our experience has shown that the result of a pre-litigation investigation is often a better informed and more effective approach to the entire process.
Many attorneys routinely bring multi-disciplinary teams of investigative experts into their litigation teams at the earliest hint of trouble. These litigators wouldn’t think of investigating a client’s dispute or conducting litigation without these resources. If you do not already follow this course, you should consider doing so; you are likely to be pleased with the results.
Thomas D. Thacher II is President and CEO of Thacher Associates.