by Uchechi Anyanele

One principle in modern litigation is that you do not take the opposing party by surprise. It must be a no-brainer then that a party would not take itself by surprise, right? But that is what happens whenas you may have observed in certain court proceedings while counsel puts questions to his or her client in the witness box, it is clear that the witness’s story is incoherent. Isn’t this something that a little bit of investigation could prevent? I’m not talking about due-diligence audits done in transactional practice or boilerplate legal research. I mean legal investigation for litigators.

Why Investigation is Relevant to Dispute Resolution Practice By Uchechi Anyanele Nigerian Law Today

The Observation

In Law School we learn about client interview. But after client interview, what next? Before or while analyzing preliminary issues like cause of action, jurisdiction, etc., do we take time to conduct an investigation to ensure the client’s story checks out, or are we wont to collect our fee and get to work on what the client wants? It has been observed that many law firms in Nigeria simply rely on documents or comments clients share with them without independent investigation. Kudos to lawyers and law firms that already incorporate investigation into their dispute-resolution practice, but many of us still need to get with the program.

Why Investigate?

You may agree with me that when there is a dispute, all parties have contributed to the problem one way or another. But each side will tell the story from its perspective. Because a client may lie, overreact to issues, or be mistaken as to facts, it behooves counsel to do some investigation, even before sending a demand letter to the opposing party. Also, due to ignorance of the law, a client may gloss over some information, wrongly assuming that they’re frivolous. Investigating facts will guide a lawyer in knowing whether to take further action and what solutions to explore, rather than just acting on the client’s instruction.

This could, in turn, reduce the alarming caseload of judges which contributes to lengthy litigation. Further, investigation would reduce the rate of applications for substituted service and subsequent applications to set aside default judgments. This is because sometimes all that’s really needed is investigation to trace the defendant’s address.

Why Investigation is Relevant to Dispute Resolution Practice By Uchechi Anyanele Nigerian Law Today

Investigation could also reveal the root cause of a client’s problemthe client may not even be aware of the existence of such root causes. One can then properly advise a client on how to avoid future re-occurrence of the messa sincere client will be grateful for that. Yes, lawyers or law firms in Nigeria should recognize the need for investigative skills in dispute-resolution practice and incorporate them in practice and in associates’ training.

Meaning of Legal Investigation

Legal Investigation is a subspecialty of private investigation which directly supports lawyers. A legal investigator does the same thing as any private investigator, but with a lawyer’s needs in mind. This means that legal investigators must have some knowledge of the legal system. They need to understand what kind of evidence is admissible in court. Of course, that does not mean that facts which may not be used as evidence in court are useless; they can be instructive and assist in generating leads. The legal investigator is an individual trained in techniques of fact finding, forensic procedures, and human relations. In several countries, there are national associations of legal investigators. A legal investigator in these jurisdictions is not a law student or law clerk, but a true professional in his or her own rights, acting within all local and federal laws.

The general profession of private investigation (PI) is still developing in Nigeria. From an online search, about 6 PI firms in the country hold themselves out as private investigators, the majority of which appear to be international firms with local ties. Nigeria’s National Assembly is in the process of encouraging the PI business. The Private Detectives and Investigators Bill, 2007 (the Bill) seeks to not only create a legal framework to license and regulate private detectives and investigators but also enhance public security systems by incorporating the private sector in the detection and investigation of crimes in Nigeria.

The Bill, if applied in conjunction with the Private Guard Companies Act, 1986 (the Act), may be an opportunity for private-guard companies to extend the range of services they render. There are several security firms in Nigeria. But by section 22 of the Act they are expressly prohibited from holding themselves out as “private detectives”. For clarity, it may be efficient if some reference to the Act and reconciliation of restrictions in the Act are included in the Bill before it becomes law. But we can conclude that upon passage of the Bill, these private-guard companies are encouraged to acquire training and license to operate as private detectives. They will still be regulated by the Ministry of Interior which has supervisory role over the Nigeria Security and Civil Defence Corp that licenses private guard companies.

How to Investigate

A fact investigation may be conducted by external investigators (legal investigators), paralegals, law clerks, or associates. In certain jurisdictions, large law firms employ their own staff of detectives who conduct legal investigations to support their cases. But many law firms aren’t big enough to have a full-time staff of trained legal investigators, so independent private investigators may be hired by lawyers to perform legal investigations.

But the legal practitioner is ultimately responsible for overseeing the investigation and redirecting it if necessary. By Rule 25 of the Rules of Professional Conduct for Legal Practitioners, 2007 (RPC), a legal practitioner is empowered to engage in investigation of facts in pursuing his or her client’s case. We do not have to be detectives before we acquire investigative skills. And this power of legal practitioners or their employees to carry out such investigation does not require holding any special licenseneither under the Private Guard Companies Act, 1986 nor the Private Detectives and Investigators Bill, 2007.

Some tips for investigation when a lawyer does it himself or herself include having a written plan clearly setting out the scope and goals of the investigation, and possible sources of information. Good reporting is also recommendedsetting out the complaint, how the investigation was conducted, relevant facts, findings, conclusions, and recommendations.

Funding Legal Investigation

The financial implication of legal investigation is a factor that may be discouraging many law firms in Nigeria from investing in it. Although it may be incorporated in the professional fee charged, the funding may just have to be part of a firm’s overheads. It now boils down to a question of what is considered essential for efficient legal-services delivery. Since legal investigation is important for a sterling standard of law practice, a law firm’s management should make provision for investigation in its annual budget.

Wrapping It Up

It is one thing to know what should be done. It’s another thing to actually do it. Let’s individually get to work on acquiring investigative skills as legal practitioners. I am not aware of any professional association of legal investigators in Nigeria with a standardized professional practice. Pending legislative developments, perhaps this is an opportunity for stakeholders and regulators in the legal profession to liaise with stakeholders in the security and investigative profession to create something epic.

 

Uchechi Anyanele is a lawyer in Lagos, Nigeria. Outside legal work, she enjoys reading books on self-improvement, proofreading written text, and absorbing musical lyrics. She is passionate about continuous improvement for lawyers.

[1] Darrin Giglio, ‘What is Legal Investigation?’ (North American Investigations, 10 February 2016) <https://pvteyes.com/what-is-legal-investigation/> accessed 30 July 2018; See also https://privateinvestigatoredu.org accessed 20 August 2018

[2] Op cit

[3] National Association of Legal Investigators, ‘Legal Investigator Defined’ (NALI, 2016) <nalionline.org/legal-investigator-defined/> accessed on 31 July 2018

[4] Policy and Legal Advocacy Centre, ‘Private Detectives and Investigators Bill Scales Second Reading in the Senate’ (PLAC, 31 May 2018) < https://placng.org/wp/2018/05/private-detectives-and-investigators-bill-scales-second-reading-in-the-senate/ > accessed 13 August 2018

[5] Kingsley Adegboye, ‘Survey Report Okays 12 Security Firms in Nigeria’ (Vanguard, 2 October 2012) < https://vanguardngr.com/2012/10/survey-report-okays-12-security-firms-in-nigeria/> accessed 19 August 2018

[6]  www.nscdc.gov.ng accessed 14 August 2018

[7] Christine Meadows, ‘Fundamentals of Investigating and Interviewing’ (American Bar Association, July/August 2014) < https://www.americanbar.org/publications/gp_solo/2014/july-august-2014/fundamentals_investigating_and_interviewing.html> accessed 24 August 2018

[8] Op cit, Darrin Giglio

[9]  Op cit, Christine Meadows

[10] See section 36(3)(a) of the Act, and section 8 of the Bill

[11] Op cit, Christine Meadows

[12] Obudsman Western Australia, ‘Guidelines on Conducting Investigations’ (Obudsman Western Australia, May 2009) < www.obudsman.wa.gov.au/publications/documents/guidelines/binder-conducting-investigations.pdf> accessed 20 August 2018

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Nigerian Law Today

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