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USING A PRIVATE INVESTIGATOR IN FLORIDA LITIGATION PROCEEDINGS

PrivInvest

The use of private investigators (“PI”) in Florida litigation is more common than many people recognize. My general rule is that if the stakes are high enough then the likelihood of parties utilizing PI’s is there. A couple of years ago, Sweeney Law, P.A. was representing a surgeon that was forced into retirement due to a disability, specifically a bad back. Unfortunately for the surgeon, everyone knew and recognized that he was fully disabled, except for the parties that were responsible for paying his compensation due to the disability. We advised that client that due to the underlying claims and the amount in controversy, that it was very likely that a PI would be in the picture. I specifically recall being told that I was crazy and that there was no way a PI would be following around my client and his family around. Sure enough a couple of months later photographs and videos of the surgeon walking his very large dog in the morning come about during discovery. The argument being made at the time was that if the surgeon can walk his dog, then the surgeon can continue with practicing surgery. The surgeon in this case was severely disabled and there was nothing to really worry about. However, the PI evidence did put a bump in the litigation proceedings and some red herrings for the Court to address.

There are numerous purposes for retaining a PI, varying from locating people, searching for asset, to support in remedying a theft or even preforming a background check. Private investigators will be able to collect information and evidence that is important to your case and can support in time sensitive cases. Many individuals, though, worry that the evidence found from a hired private investigator may not be admissible in court. On the contrary, evidence gleaned from the use of a private investigator is generally admissible, however, one must be careful not to trounce on any legal or ethical implications.

Admissibility of Private Investigator Evidence

Usually people speculate if the evidence gathered from hired private investigators can be used and hold up in court. They can take solace that, when done correctly, the evidence collected by a PI is not only legal but may make the difference between winning or losing a case. Therefore, it’s essential to only hire a professional private investigator who is licensed and has extensive training. Overall, information gathered by a PI is admissible, as long as it was gathered in a way that did not break the law. Essentially, any conversations that the private investigator overhears or any pictures taken in public places are typically legal and admissible. Nevertheless, there are some exceptions to consider such as whether or not the people involved have a reasonable expectation of privacy.

Legality issues arise if the evidence is not collected correctly and laws were broken to obtain information. Thus, it is crucial to understand that a PI is not above the law. They must still act in a way that is legal and they should act with integrity and professionalism.

Evidence a Private Investigator Can Gather

PIs aid in many situations so that attorneys can argue their case effectively. Mostly they are used for locating people and assets as well as collecting necessary evidence. Working with a private investigator can help influence your position to find creative and efficient ways to help improve your client’s odds to win a case. Some of the main types of evidence that a PI can collect are:

  • Documentary Evidence:  Such as documents that are produced to be inspected in the courtroom. These documents can be real, original or hearsay.
  • Physical Evidence: This is sometimes referred to as real evidence. Itis evidence that is in the form of a physical object, such as a gun or DNA from a crime scene. This can be presented in court as a physical object, shown in a video or photograph, or also referred to in documents.
  • Testimonial Evidence:  Testimonial evidence is either written or spoken evidence given by a witness under oath. It can be gathered in court, at a deposition or through an affidavit.
  • Hearsay Evidence: This includes of statements made by a witness who is not present. While hearsay evidence is not admissible in court during trial, it can be relevant and valuable in a workplace investigation or other instances where the burden of proof is less vigorous than in court.
  • Original Evidence: These are “out of court statements” that are presented for an applicable reason commonly referred to as hearsay exceptions or exclusions. For example, to prove a person’s motive.

Ethical Considerations of Using a Private Investigator

            When an attorney is hiring a PI for assistance in litigation, the attorney must realize that the PI is considered the attorney’s agent and is thus bound to the same rules of ethics as the attorney. Most notably, Rule 4-84 of the Florida Rules of Professional Conduct state that a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. This catch-all rule makes it clear that an attorney cannot get around the guidelines of Florida Bar ethics rules by using a private investigator. If a PI that was hired by an attorney is shown to have acted or performed an act that would have been unethical for the attorney themselves to perform, the attorney could be liable for ethical sanctions. 

Take Away

The important take away here is that if there is enough money at stake private investigators will be used. After that, it will be up to the attorneys and judge to decide how what they’ve gathered can be used.

Sweeney Law, P.A. Has Vast Experience With Private Investigators in Florida Litigation

Brendan A. Sweeney, Esq., LL.M., of Sweeney Law, P.A., a boutique firm in Fort Lauderdale, Florida, regularly handles complex litigation that concerns the use of Private Investigators throughout Florida. Brendan A. Sweeney, Esq., LL.M. is an AV Preeminent Martindale Rated Attorney, that has been recognized as a Florida Super Lawyer in 2019, Florida Legal Elite in 2019, and as a Florida Super Lawyer Rising Star in 2018, 2017, 2016, 2015, and 2014. If you have any questions and/or issues regarding Private Investigators contact Sweeney Law, P.A. at (954) 440-3993 immediately to protect your rights.

www.sweeneylawpa.com.

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