Direct and Indirect Evidence: Learning from Computer Scientists
As investigators, we can't always get exactly to the evidence we want to prove. Sometimes it merely doesn't exist. Often, ethical and legal constraints keep us from being able to obtain the facts we definitively need to prove what we are investigating.
It's easy to get lost searching for the unsearchable, pining for that one nugget that will help everything fall into place. But investigators don't have that luxury.
So, we sometimes have to do what the computer scientists have done by pinpointing a font as a sign of trouble: We have to take a step back and look for clues elsewhere. We may not have direct evidence of wrongdoing, but we can scour the evidence in order to detect patterns that suggest wrongdoing. Alternatively, we can review the facts to see if we can find any that correlate with what it is we've been asked to help prove or disprove.
This is not about making assumptions--we never say that because x exists, therefore y. Instead, it is about being able to look for solutions that advance our clients' knowledge, even if they fall short of the ideal solution.
Name Searches: Options Abound
A good investigation begins with the information the client has provided, but it certainly does not end there. In cases where an investigation fails to yield any viable results, among the first steps is to challenge the information given. After all, as we've said in our article for InsideCounsel,"5 Tips When Searching for Assets," you don't know what you don't know.
For a person search, this might mean questioning the name provided. There are enough variations in names to allow for numerous other search terms that might be more fruitful.
Lawyers and Cybersecurity: Preventing Breaches of Confidential Information
Recently proposed changes to attorney ethical rules by the American Bar Association (ABA) suggest that the profession sees technical breaches as a serious problem in need of immediate remedies. Earlier this week the ABA Commission on Ethics released a summary of proposed changes to the Model Rules, including a new rule requiring lawyers to take proactive measures to protect their client's information when using new technologies. The proposed rule suggests that lawyers have to be more aware of both "inadvertent and unauthorized" disclosures--in other words, leaks from inside and hacks from outside a firm. The proposed rule warns technophobes that they need to change their Luddite ways. Lawyers now have a "duty to keep abreast of changes in relevant technology, including the benefits and risks associated with its use." In other words, claiming ignorance is simply not an excuse.
By putting the onus on lawyers, the ABA is acknowledging what those of us who study and track security breaches have been shouting from the rooftops for years: preventing security breaches is not just about technology; it's about changing human behavior. As the Wall Street Journal article makes clear, "the weakest link at law firms of any size are often their own employees."
Other industries face similar problems. For example, a recent article on data breaches in the health care industry suggests that the epidemic of breaches of confidential health care information has more to do with human error than it does with IT shortcomings. As Larry Clinton, president and CEO of the trade association Internet Security Alliance succinctly points out "[p]eople are the biggest problem." Consequently, Collins predicts that data breaches in hospitals and health care systems will only be prevented if these organizations approach these breaches as a "human-resource management issue and not an IT issue."
Internet Fraud: How to Spot a Possible Scam on the Web
A friend's on-line purchase led him ask us to look into a website. The results make for a nice case study in the detection of possible fraud.
Good Investigations: A Second Opinion on Most Everything
Good investigators are not necessarily smarter than the people they help. What often makes a good investigation is one in which "known" facts are independently evaluated once again. Just as we sometimes want a second opinion on a complex medical or legal matter, gathering and weighing the credibility of facts can also benefit from a fresh pair of eyes.
In Plain Sight: Corporations and Public Records
Clients are often surprised to learn how much corporate information is on the public record. Of course, public companies are forced to disclose a lot more data than private ones, but it's still possible to learn about private companies using smart and thorough public records searches. And there's more to learn than just what assets a company holds.
Scratching the Surface: Due Diligence and Public Record Searches
What does it really mean when an investigator says that they are going to do a background search on a person and track down all the relevant documents "on the public record"? Well, let's start with what it doesn't mean: bank documents and cell phone records are not public record. Any investigator who tells you he can track these down for you is ostensibly promising to break more than a couple of laws to get you that information. In addition, given that he's acting as your agent, odds are it could get you in a heap of trouble as well.
So what can you expect instead? Below is a list of the various public documents that you should expect from your investigator when investigating a person. Future blog posts will detail similar lists for background research on companies and for asset searches.
Thinking Outside the [Shoe] Box: The Shaks, Collections and Divorce Asset Searches
The media seems to be having a good chuckle over the recent legal tiff between hedge fund manager Daniel Shak and his ex-wife, professional poker player Beth Shak. The couple divorced about three years ago, but Daniel is requesting that the…
Foreign Due Diligence on U.S. Companies is a Must
We have had a number of recent cases involving foreign companies who entered into large-scale sale agreements with American-based corporations. These companies are run by sophisticated, experienced executives. In most instances, the agreements…
Etan Patz Suspect: Public Records and Family Interviews Make for a Different Picture
We take no position on the guilt or innocence of Pedro Hernandez, the man police say confessed to killing a six-year old boy, Etan Patz, in New York in 1979. Among the many things that make the case interesting from a professional point of view…
