In Civil Litigation, Criminal Defense

Heard recently at the Maddox Law Firm –

“I found the guy I got into a fight with and talked to him.  He said he’s good and that he’d write a letter to the judge”.

“After we received the summons and complaint, we called the company that’s suing and they said that we can work things out”.

“Another lawyer told me that if I can get the person to write a letter and have it notarized, there would be no case”.

Nope.

Keep your day job and drop the brilliant idea of doing your own investigation.  There are a lot of reasons, but here are the

Top Four Reasons Why You Shouldn’t Do Your Own Investigation.

1) When you play investigator, you make yourself a witness.                                                                                                                                                                                                             

What does that mean? Imagine that you speak with a witness in your case, and at trial that person testifies differently than what they said to you.  If you’re the only person who heard what they told you, then the only way to contradict the testimony is for you to testify.  If the case is a criminal matter and you testify, you will give up your right to remain silent.  You’ll then subject yourself to damaging cross examination that starts with, “You’d say anything to not go to jail, wouldn’t you Mr. ______________”?

In a civil trial, the question will be, “You’d say anything to improve your chances in this lawsuit, wouldn’t you, Ms. ____________”?

2)  Contacting a witness or collecting your own evidence can lead to serious consequences whether you’re in a criminal or a civil case.

In a criminal prosecution, contacting an alleged victim or a hostile witness can lead to a new criminal charge of Intimidation of a Witness.  Mishandling of physical evidence can lead to a charge of Tampering with Evidence.  In a civil case, damage to or loss of evidence can lead to jury instruction of spoliation of evidence; that means that the jury can infer that the damaged or lost evidence would have been favorable to the other side.

3) Doing your own investigation almost always breaks the evidence chain of custody.

Regardless of the category of your case, preservation of evidence is extraordinarily important.  That means preserving it in the same condition as it was when it was discovered. The rules of evidence refer to Chain of Custody and Foundation.  Experienced trial attorneys understand how to maintain the integrity of evidence and chain of custody.  You don’t.

4) When you try to do your own investigation, you involve yourself in work that you are simply not trained to undertake.

Interviewing witnesses and examining and preserving evidence involve complex legal, factual and forensic consideration.  Investigation should be conducted by a trained investigator alongside an experienced trial attorney.

The Maddox Law Firm fields questions from people every day who have tried to do their own investigation, want to do their own investigation, or have unfortunately received the wrong advice from a lawyer who simply has no understanding of the complexities of evidence and trial.

We work with private investigators with extensive training and investigation experience.

We interview witnesses with the investigator so that we can be sure that all of the necessary questions are asked, but that we don’t become witnesses ourselves.

Why?  Because the professional, licensed investigator serves as a witness if necessary.

Investigation is always a topic that should be taken up at the very beginning of a case.  It is a way of thinking that in our firm requires that we immediately begin anticipating trial.  That doesn’t mean that trial has to happen, but it does mean that you  and your law firm should be prepared for trial.  Investigation is an integral part of that preparation.  Make sure that your law firm knows how to investigate so that you’re not doing it yourself.

Attorney Matthew Maddox on Fair Fight