Be Prepared
After receiving a subpoena, contact the attorney for whom you're working. She will want to discuss the types of questions you may be asked and prepare you for the more difficult aspects of the case.
Using Your Notes
Before you get on the stand, review all the information you have in your report and notes. You don't have to memorize everything, but refresh your memory as to important times, dates, and incidences. If the case is long or complicated, you're allowed to take your notes to the stand for the purpose of finding and confirming dates, times, or specific details that might otherwise be fuzzy in your memory. However, if you do so, know that they may be made available to the other side for inspection, and they could be placed into evidence. At the very least, the portion that is ruled to be related to the case can be entered into evidence. Talk to your attorney first.
Jurors may see you from the moment you leave home. You may be in traffic or on the bus with jurors. You may run into a convenience store or get gas at the same location, or be together in the courthouse or rest-room prior to trial. They might not know you until you testify, but they'll remember an inappropriate or ugly scene, and they will judge your testimony by your behavior and attitude.
In civil cases, your notes and reports are subject to discovery anyway. Another point to remember: Accuracy is important in any case, but be aware that, when the other side gets your reports and notes, opposing counsel will comb through them looking for mistakes on which to build their case and cause doubt in the minds of jurors.
The Attorney as Client
If you interview a potential client who presents with a situation that you believe could go to trial, encourage the potential client to choose an attorney before you begin. This way, the attorney can employ you instead of the individual. This means the attorney must sign the client agreement and the attorney must pay you. Some investigators dislike having attorneys as clients because many attorneys don't want to pay in advance. Yet there are advantages to the client and to the case in some situations.
If the attorney is your client, your reports and notes won't be open to the other side in discovery. Before a case goes to trial, attorneys are required to supply each other with a list of witnesses they plan to use. Each attorney will interview or depose these witnesses to determine what they know and what evidence they possess. This is the discovery process. If your client is an individual, your investigative report is available to the other side in discovery — don't take the case until you inform the client of discovery. If your client is the individual's attorney, the report is safe under what's called the work product rule — it's safe unless the attorney decides to give it up to the other side for her own reasons.
Your Notes as Attorney Work Product
Work product is defined as any notes, documents, reports, or research materials that the attorney uses in preparing his case — anything that discloses his trial strategy. Attorney work product privilege is one of the five privileges in Exemption 5 of the Freedom of Information Act, 5 USC§ 552(b)(5). A nonattorney is said to be able to author work product and enjoy the privilege if she is acting under the direction of an attorney. Because the PI is acting under the attorney's direction, her report is part of work product. Therefore, any client who presents with a case that may go to court should be encouraged to retain an attorney. If he doesn't, your report may fall into the hands of the opposing counsel at discovery. However, your conscience is clear — you've informed your client of the possible ramifications and let him choose.
