Preparing a State Insurance Fraud Referral

Preparing a State Insurance Fraud Referral

Preparing a State Insurance Fraud Referral

As a private investigator, you may focus your business on insurance and claims related work. If that’s the case, have you ever submitted a state insurance fraud referral? If you said no, your not alone by any means; however, being able to do so will certainly set you apart from your competition.

Every state has their own way of doing things but the general idea remains consistent, identify the state statutes that were violated, determine the elements of the statute and match them to your case, and pull out all of the evidence from your investigation and the claims file to support your belief that fraud was committed. It’s no different from what a detective in a police department does with crimes he/she may be investigating.

This need for private-public cooperation in the battle against insurance fraud has led to the enactment of state fraud reporting laws that facilitate insurance fraud referrals while affording insurers a measure of insulation from civil liability for defamation or bad faith. However, these laws sometimes referred to as “immunity acts”, do not create an impenetrable shield to insurers who provide evidence of suspected fraud to law enforcement. A finding that an insurer or investigator acted with malice or bad faith during the referral process can completely undercut any immunity and lead to costly litigation. Simply be professional and act in good faith at all times and the state immunity laws will provide adequate protection against frivolous lawsuits.

Insurance Fraud Referral Template CTA

Got MILK? Got FRAUD!

Who would have thought the word milk would have so much relevance to the world of insurance fraud? I’ve always told people, if you have MILK, you have fraud. No, no, not the liquid milk, the acronym M.I.L.K.

  • Materiality – was the activity in some way material to the case?
  • Intent – was the activity done intentionally?
  • Lie – did the subject lie about something for the purposes of concealment?
  • Knowledge – did the subject know what he was doing was wrong?

If you can prove these four elements, you most likely have a solid case of fraud and can prove it.

Who do I submit my state insurance fraud referral to?

Although the governing authorities vary by state, most states have an organized insurance fraud bureau; the investigators there will be your first point of contact. This doesn’t mean that you won’t speak with other people during the process, it’s just where you’ll start. You will most likely discuss the case with a state attorney who will use you to get up to speed on what happened and what you’re alleging.

There have been times when I feel I have a solid case but the investigator assigned from the fraud bureau just doesn’t see it my way. Because I’ve reported so many of these, I know what state attorneys are looking for and in some narrowly tailored situations, I’ll take my case right to the Assistant State Attorney (ASA) to review the salient facts and generate some interest in the case. I recommend not doing this too often you want to develop a good working relationship with the state investigators. Going to the ASA on every case they say no to will certainly anger even the most patient of investigators.

Keys to a Successful Fraud Prosecution

  • Know and follow the requirements and limitations of applicable fraud statutes.
  • Limit company representatives involved in referrals. Insurance fraud referrals and responses to requests for information from law enforcement should only be handled by designated special investigations units or claims personnel.
  • Document, document, document. The importance of documenting everything sent to or received from law enforcement or prosecutors and maintaining that documentation cannot be overstated.
  • Provide the good, the bad and the ugly. If it’s material, report it.

How do I prepare the actual referral?

Now that you know fraud exists, you have to express it to someone else in a written referral. It’s like the longest school project you’ve ever been assigned! You’ll have to answer the who, what, where, when, and how of the case.

In this post, I’ll break down the most important topics and the sequence you should submit them in the final referral.

General Information

The general information section basically covers the “who” is involved in the referral. Here you will provide information on the subject or suspect, the insurance company, and any involved agencies, such as the police, the fraud bureau, or even the state attorney.

This is important because whoever is working on the file may be duplicating efforts, or worse, stepping on another agencies toes.

Statement of Facts

This section will most certainly be the most voluminous. In this section, you will document every fact that has led you to the conclusion fraud was committed.

Facts can come from many different places. For instance:

  • Investigation Reports
  • Claims Notes
  • Depositions and Statements
  • Medical Records and Medical Professionals
  • ISO Reports (Claims History Report)
  • Database Searches
  • Witnesses
  • Co-workers

Seeing all of these possibilities, you can see why it’s so important to outline the fraud in a documented referral. Giving the ASA a solid case that they don’t have to do too much with will go a long way in whether or not they accept the file. The days of slamming a huge box of paperwork in an ASA’s office and saying, “…there is fraud in that box” are over.

Material Misrepresentation

Within the Statement of Facts, you’ll be including a section called Material Misrepresentation. In this section, you’ll outline where, when, and how the suspect committed fraud. Address how the suspect misrepresented himself, his injury, or anything else he may have intentionally misrepresented during the claim process.

Current Status of the Claim

The people reading your report will want to know where the claim stands currently. Is the claim denied, still active? Is the suspect still getting paid, or not getting paid?

In most cases, the claim will have been denied but there still may be medical expenses that need to continue being paid.

Date of Discovery of Suspected Fraud

Pretty basic. What date did you determine fraud existed?

You’ll write something like, “Potential fraud has been established as of April 10, 2014.”

Some people make the mistake of using the date of loss as the date the fraud was discovered. The date at which point restitution can be ordered is the date the fraud was discovered and that could be years into a claim.

Applicable Statutes

A statute is a written law enacted by a legislature. The statutes you will deal with most frequently regarding insurance fraud, are state-level statutes. Keeping in mind, there may be other statutes, other than just insurance fraud, that is applicable to your referral.

For instance, if the suspect lied during a deposition, he may have committed purgery. Insurance fraud is theft, so if you have a situation where the restitution you’re requesting is greater than a certain amount of money (usually $500 or so), your suspect may have committed grand theft, or conspiracy to commit grand theft.

You must research the laws and determine what statutes are applicable to your case. Once you determine the statutes you’ll be using, it’s important to determine what degree of the crime is applicable. For instance, in Florida, an offense will be charged as Grand Theft in the First Degree if the property that was stolen is valued at $100,000 or more. An offense will be charged as Grand Theft in the Second Degree if the property that was stolen is valued at $20,000 or more, but less than $100,000.

For instance, in Florida, an offense will be charged as Grand Theft in the First Degree if the property that was stolen is valued at $100,000 or more. An offense will be charged as Grand Theft in the Second Degree if the property that was stolen is valued at $20,000 or more, but less than $100,000.

Based on what you’re asking for in restitution, that could change the statute you want to use significantly, and in turn, will also change the prevailing penalty. FindLaw has an excellent website that goes over all of the insurance fraud statutes by state.

Loss and Restitution

In this section, you’ll be defining how much money was allegedly bilked from the insurance company and what you would like to see in restitution be returned back to your client.

These amounts may vary greatly, some over $100,000, some just a few hundred dollars. No matter the amount, it’s important that you don’t lose sight of the fact the reason you’re submitting the referral isn’t just punitive in nature. You want your client to be made whole again and get the money back they lost.

Why not just sue them and get a judgment? Good question. Because insurance fraud is stealing and against the law. Also, if you are able to tie the restitution to their possible conviction and sentencing, even if the sentence is just probation, you will have a much greater chance of getting the money back than if a civil court issues a judgment. If they default on payments during the probationary period, they violated the terms of their probation and may have to serve the original sentence in its entirety.

Are you aware, on a national level, if insurance fraud was a business, it would be a Fortune 500 company, according to national reports? It is, by all accounts, the second largest economic crime in America; only tax evasion exceeds it.

Witness List

You will be required to submit a list of prospective witnesses. A witness list is comprised of the players involved in the case. It’s proper to provide their names, addresses, and contact information, along with what role they played in the claim.

If either party desires the testimony of a given witness, that party must take the appropriate steps to obtain the witness’s presence at an appropriate time and in an appropriate fashion. Failure to include a witness on the required witness lists may result in that witness’ testimony being prohibited at trial or other sanctions. Court rules vary, so requirements in your jurisdiction should be consulted.

Exhibit List

An exhibit is a document, record or another tangible object formally introduced as evidence in the court. Your exhibit list is a list of such Exhibits a party wants to produce before the court to prove a case.

It’s best to label each Exhibit first, then produce a reference sheet (Exhibit list) to add to your referral. Trying to label and record the Exhibits as you go can get confusing and will take much longer.

Remember, as you collect the evidence you may require a chain of custody form.

Conclusion

Here’s my typical conclusion, “Based upon the foregoing, it is respectfully requested the findings are made as set forth above.” No reason to be wordy here as you’ve already outlined your entire case in detail throughout the referral.

Final Thoughts

I’ve submitted close to 100 insurance fraud referrals in my time and I still learn new things simply because there are so many laws, so many variables, and things are ever-changing in this environment. Once you get the first one under your belt, the rest became easier and easier and it’s rewarding to follow these assignments through to the end.

If you have any questions, or I can be of assistance, email me at brian@crosstrax.co.

Insurance Fraud Referral Template CTA

Personal identifiable information online security

Personal identifiable information online security

Personal identifiable information online security

We all need to be aware and focus on having the very best online security. With so much information being leaked online, you need to employ robust password procedures, dynamic security protocols, and an innate assurance that all those tasked with enforcing these policies understands the urgency of their responsibility. As you can imagine, each time we go online it’s possible we left a breadcrumb trail of personal identifiable information behind.

Can’t I just erase the information or delete my account?

While we can try to erase the data, and delete the accounts, companies like Google, Spokeo, PIPL, and so on will continue to aggregate our information in bits and pieces, and they’ll maintain that data and possible use it in ways you may not approve of. Let’s face it, every service that’s free comes with a price. Plus, even the paid ISPs need to keep your personal data for various reasons.

You may not be aware of this, but there are websites out there whose sole responsibility, or maybe I should say agenda, is to aggregate information so if they are deleted, they can be republished on their site for viewing. Check out Politwoops. This is an archive of the public statements deleted by U.S. politicians. They allow you to explore the tweets they would prefer you not see. And there are many other sites that do this on much larger levels and may include your information.

The idea here is simple; you must be wary that your data can always be leaked online and you, and only you, must take responsibility for your online activity. It is up to you to find the best possible ways to stop any leaks from happening. Granted, this isn’t an easy task but the reality is, no one is going to protect you like you would protect yourself.

Case Management Systems and Personal Identifiable Information

During an investigation, you have a need to gather and use personal identifiable information, we all know that. However, when you’re done using the information, who is responsible for the proper maintenance and disposal of those records.

I’ve worked for several large private investigation firms and I can tell you, from my experience, breaches have been a reactionary problem without thought to a proactive solution. In fact, at one of the large firm, to test a report that included a massive amount of personal identifiable information, one of the developers use the name of a very popular football player who was involved in a very high-profile criminal case.

The developer certainly wasn’t supposed to use live data and never should have used such a high-profile individual; however, to make matters worse, he told a lot of people what he did and copies of the information were disseminated to certain people in the office. Could have been a disaster really.

Your case management should have processes and triggers that will flag this type of nefarious behavior. Additionally, the case management system you use should just allow but encourage your business to become paperless.

Not being paperless creates a whole new set of issues. One of which, people in the office must physically secure sensitive data in a locked drawer, cabinet, desk, or safe, when not in use or not otherwise under the control of a person with a need to know.  This is a monumental task and takes everyone in the office to be on board with looking for offenders in an effort to maintain an effective policy. Paperless is the way to go!

I found this online and found it quite relevant. The Organization for Economic Co-operation and Development (OECD) identified the following Fair Information Practices:

  • Collection Limitation – There should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject.
  • Data Quality – Personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date. Purpose
  • Specification – The purposes for which personal data are collected should be specified not later than at the time of data collection and the subsequent use limited to the fulfillment of those purposes or such others as are not incompatible with those purposes and as are specified on each occasion of change of purpose.
  • Use Limitation – Personal data should not be disclosed, made available or otherwise used for purposes other than those specified, except with the consent of the data subject or by the authority of law.
  • Security Safeguards – Personal data should be protected by reasonable security safeguards against such risks as loss or unauthorized access, destruction, use, modification or disclosure of data.
  • Openness – There should be a general policy of openness about developments, practices, and policies with respect to personal data. Means should be readily available of establishing the existence and nature of personal data, and the main purposes of their use, as well as the identity and usual residence of the data controller.
  • Individual Participation – An individual should have the right:
    • (a) to obtain from a data controller, or otherwise, confirmation of whether the data controller has data relating to him;
    • (b) to have communicated to him, data relating to him within a reasonable time; at a charge, if any, that is not excessive; in a reasonable manner; and in a form, that is readily intelligible to him;
    • (c) to be given reasons if a request made under subparagraphs (a) and (b) is denied, and to be able to challenge such denial; and
    • (d) to challenge data relating to him and, if the challenge is successful, to have the data erased, rectified, completed, or amended.
  • Accountability – A data controller should be accountable for complying with measures which give effect to the principles stated above.

Conclusion

Companies generally must use and sometimes must maintain personal identifiable information in the normal course of business, such as, names, Social Security numbers, credit card numbers, or other account data that identifies the person it’s attached to.

This information can be necessary for a plethora of necessary business functions. However, if sensitive data falls into the wrong hands, the result is fraud, identity theft, or other nefarious acts. Because of the cost associated with a breach, safeguarding personal information is just good business.

5 Principles of a Sound Security Plan

  1. Take inventory of what personal information you have in your files and on your computers.
  2. Keep only what you need for your organization.
  3. Protect the information that you must maintain.
  4. Properly dispose of what you no longer need.
  5. Have a plan! Remember, even the best get breached. If you do, having a plan of what to do will be critical.

Post Tip

Surfing safely on the Internet during an investigation isn’t always a given nowadays. Having up to date virus protection and malware protection is important but what about when you’re traveling through the Internet? Did you know it’s pretty easy for hackers to know where you’ve been and what you’ve been researching?

Tor, an acronym for The Onion Router, is a network and software that adds another layer of protection and helps you surf the web anonymously. Tor hides where you go and what you’re looking at.

Tor encrypts the data you send across the Internet in multiple layers, like an onion. It sends that data through multiple relays, each one “peels back the onion”, until your information leaves the final relay and arrives at the intended destination. This is ‘onion routing’ and if used correctly, it can be one of the best ways to ensure your browsing will remain anonymous.

Check out the Tor site at torproject.org, and did I mention, it’s free.

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TYPES OF EVIDENCE

INVESTIGATION BEST PRACTICE

15 Types of Evidence and the Elements to Look For

Preparing Open Source Intelligence (OSINT) for Litigation

Preparing Open Source Intelligence (OSINT) for Litigation

Preparing Open Source Intelligence (OSINT) for Litigation

18

NOVEMBER, 2016

OSINT
Social Media
Internet Mining

Let’s face it, we live in a day and age where your online existence says volumes about who you are and how you conduct your yourself. In rare instances, we see social media replacing the need for traditional surveillance.

Surveillance is most often necessary but judges and juries don’t always warm up to the idea of someone crouching in the bushes or sitting in a car photographing another person. However, open source intelligence has the benefit of often coming from the subjects themselves, thereby eliminating or at the very least curtailing the “creepy” factor.

We’ve all heard and read countless articles on the Internet in investigations, and for good reason. Even with the Internet as mature as it is now, a clear majority of investigative agencies, law firms, insurance companies, and employers are not effectively using this potential treasure trove.

OSINT Google HDB

Google Hacking-Database

The Google Hacking Database (GHDB) is open source intelligence at its finest, an authoritative source for querying the ever-widening reach of the Google search engine.

Information randomly gathered and haphazardly put together will often be useless when evidentiary issues are ignored at the start of the investigation. Like any other investigation, it’s important to involve your legal team at the inception of any open source intelligence query.

A simple “social media” inquiry may sound harmless enough but it often falls short of gathering evidence in a way that makes the results useful when it matters the most, at trial. Also, consider “flat-rate” basic services that perform a general scan. They often do so without a narrowly tailored effort and in many instances, fails to consider how the information relates to the overall investigation and defense in litigation.

ABA Rule 4.2 Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Furthermore, it’s been adopted by many state bar associations that “friending” or connecting with a represented party is frowned upon and a violation of Rules of Professional Conduct in most instances.

Ethical Considerations

Although tempting, especially behind the guise of the Internet wall, one must avoid initiating contact with a represented party. Although it’s quite clear, the question of what constitutes “contact” is often a matter of debate. The American Bar Association (ABA) projects contact with an opposing party not permissible and specifically defines when contact is appropriate.

What if you’re not a lawyer, maybe you’re an investigator or claims professional? Remember, as with common investigation rules, if the information secured is to be used by counsel at trial, expect the same rules to apply. Most jurisdictions have made the use of pretexting or creating a fictitious persona to contact a party, an ethical boundary not to be crossed. Are there jurisdictions with a more liberal approach? Sure. However, the safest bet is to only extract information that is publicly available on a person’s Internet profile or web page.

The CROSStrax Internet Mining Tool

The CROSStrax Internet Mining Tool was designed for quick, relevant, intelligent, and investigator guided Internet mining investigations. Our instant search capabilities provide the valuable information you can use to assess risk.

Behind the scenes:

1. Figure 1 – shows our search engine firing on all cylinders. That’s right, CROSStrax does the work for you and searches the Internet through direct API access.

2. Figure 2 – is our manual search box. Once the system is done, the investigator can no go into CROSStrax and dig further using the exact search criteria the specific site uses behind the scenes.

3. Figure 3 – allows you to attach all confirmed hits to a final report that is generated for you. A photo snippet, matching indicators, and a summary is attached to each hit and neatly placed in a final report for your clients.

Facebook Social Media

77% of Facebook users don’t know how to change their privacy settings or simply haven’t edited them.

Admissibility

As in any investigation, thought must be given to obtaining open source intelligence in a way that will allow it to be admitted into evidence at trial. Article X of the Federal Rules of Evidence deals with the admission of writings, recordings, or photographs. Fed. R. Evid. No. 1001(1) defines “writings” and “recordings” as “letters, words, or numbers, or their equivalent set down by…photo stating, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation”

In this regard, the admissibility of open source intelligence content is no different than traditional evidence, such as diaries, photographs, or other documents. The evidence must first be authenticated to be admitted. Like all other evidence, it also must be relevant and material and must not constitute hearsay in order to be admitted. Practical Pointer: Know what fact you are trying to prove and articulate how the social media evidence will prove that fact.

Authentication

Most background search services fall short on knowing what to do with the information once it is obtained. For the information to be admitted at trial before a jury, it must be both authentic and relevant. Relevancy is usually not an issue. Authentication, on the other hand, can be a very complicated matter.

Rules and requirements of authentication can vary among jurisdictions and often fall within the discretion of the judge. While the easiest way to authenticate evidence is via stipulation, this is not always available. Federal Rule of Evidence 901 requires evidence that the item is what it is claimed to be. While the threshold for authentication is low, it should be considered at the time the information is obtained. If you wait until trial to decide how to authenticate the evidence, it may be too late.

Under Rule 901, the most practical opportunities for authentication are from the testimony of a witness with knowledge or from distinctive characteristics in the evidence. The courts have determined that the following are sufficient for the authentication of social media:

1. The statement of a party to an instant message that conversations were his own
2. A witness who has read messages or posts that know’s the subject individual
3. Distinctive characteristics in a photograph that identify the individual
4. A username consistent with a common nickname of an individual
5. Testimony about the process of downloading and preserving evidence from the person doing so.

Courts have routinely excluded social media evidence simply because it was found online and downloaded; therefore, you need to have a plan for authentication from the outset.

Expectation of Privacy

People generally believe an individual’s personal information will remain private and will not be admissible in court. However, when it comes to social media and any other open source intelligence, an individual is most likely waiving their expectation when they post information that is publicly accessible.

Many courts have concluded, essentially, once you post something viewable by anyone else on the Internet, you have forfeited any privacy interest in it.

In one early social media privacy case, involving MySpace, a court dissented, “(A woman’s) affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.”

You may have a reasonable expectation of privacy with respect to papers in a locked filing cabinet, but not to papers you leave visible on your desk in your workplace. Your activities in an isolated or fenced home create a stronger expectation of privacy than your activities in a high-rise hotel with the curtains open.

Social media privacy cases simply apply the long-standing “reasonable expectation of privacy” rule to open source intelligence. Looking at the way social media sites operate, most courts have decided that once something is voluntarily posted on Facebook, it no longer brings a reasonable expectation of privacy. You give up your privacy by posting something on publicly accessible Facebook pages.

Don’t be fooled, your privacy can be violated on social media, however, if someone else makes a post that is invasive of your privacy. Remember, your consent doesn’t cover the postings of others that you don’t authorize.

Use of Counsel in Obtaining Evidence

Some may feel it’s common sense; however, it may simply be in your best interest to engage counsel in obtaining open source intelligence gathered on the Internet at the outset. There is a lot of great open source intelligence resources at your fingertips, but if the data isn’t secured in a manner consistent with the ethical and evidentiary requirements of the jurisdiction, it will soon be labeled as useless.

Because those requirements vary, a “cookie-cutter” social media or Internet mining investigation is usually less effective. Take time to get the right evidence the right way.

osint-cta
15 Types of Evidence and the Elements to Look For

15 Types of Evidence and the Elements to Look For

15 Types of Evidence and the Elements to Look For

There are two things to consider when contemplating the admissibility of different types of evidence, relevance and materiality. Evidence must be relevant and material to the issue(s) at hand or it could be deemed inadmissible. That said, while not admissible in court, there are still many types of evidence that can be valuable in an investigation. For instance, some evidence that is not admissible on its own may be admissible in tandem with other forms of evidence.

The law of evidence governs what can be presented in a court of law.  It applies to the use of oral or written statements, such as an affidavit, exhibits, or any other documentary material which is admissible in a judicial or administrative proceeding. Therefore, an investigators ability to gather, analyze, and track evidence is a critical competency. Even though evidence may not be direct proof of an event or claim, the direction of any case can change directions just based on the types of evidence identified.

Types of Evidence You May Run Across

1. Physical Evidence

Real evidence, physical evidence, or material evidence is any tangible object that plays some part in the issue that gave rise to the lawsuit, introduced in a trial, intended to prove a fact in issue based on the object’s evident physical features.

2. Exculpatory Evidence

Exculpatory evidence is evidence advantageous to the defendant in a criminal trial that absolves or tends to exonerate the defendant of guilt. It is the opposite of inculpatory evidence, which tends to prove guilt. Because of its extreme value to the defense, prosecutors and police are required to disclose to the defendant any and all exculpatory evidence when it becomes available.

3. Forensic Evidence

Forensic evidence refers to scientific evidence, such as DNA, trace evidence, fingerprints or ballistics reports, and can offer factual proof to determine a person’s guilt or innocence. Generally considered to be strong and reliable evidence, forensics role in exonerating the innocent has been well recognized. Due to cost and resources, forensic use in private matters is generally limited to serious cases that will most likely end up in court.

4. Direct Evidence

One of the most powerful types of evidence, direct evidence is a form of evidence such as eyewitness testimony. The evidence alone is the proof that something occurred or didn’t occur.

5. Analogical Evidence

There are times where the main issue is “cutting-edge” or generally under-researched.  Analogies come into play when you don’t have data to refer to or other sources on the matter to reference. Because there is a need for information to draw an analogy and you have to get your evidence from somewhere, analogical evidence, or comparative analysis, is the natural next step.

6. Anecdotal Evidence

Because it’s often dismissed as unreliable and worthless, anecdotal evidence is one of the more underutilized forms of evidence.  Anecdotal evidence is evidence that is based on a person’s observations. When used in conjunction with other types of evidence, it can actually be very useful for refuting generalizations because all you need is one example that challenges a claim.

7. Character Evidence

Character evidence describes any testimony or document presented for the determination of proving that a person acted in a certain way on a certain occasion based on the character or disposition of that person. Three factors classically control the permissibly of character evidence, the purpose the character evidence is being used for, the form in which the character evidence is offered, and the type of proceeding (civil or criminal) in which the character evidence is offered

8. Circumstantial Evidence

Circumstantial evidence, also known as indirect evidence, requires an inference regarding something that is based on a series of facts detached from the fact the dispute is trying to prove. It requires a presumption of facts from other facts that can be proven. While not considered to be overwhelmingly strong evidence, it can be relevant in a private matter, with a lesser burden of proof than “beyond a reasonable doubt”.

9. Demonstrative Evidence

Evidence in the form of a representation of an object and is considered to be demonstrative evidence when it directly demonstrates a fact. This could be photographs, video and audio recordings, charts, etc.

10. Digital Evidence

In recent years, the use of digital evidence in trials has greatly increased. Digital evidence can be any sort of digital file from an electronic source. This can include files, documents, emails, text messages, instant messages, the contents of a hard drive, electronic financial transactions, audio files, and video files. Digital evidence can be found on any server or device that stores data, including some lesser-known sources. It is important to think outside the box and don’t discount some unorthodox means such as home video game consoles, GPS, sport watches and internet-enabled devices. Additionally, digital evidence is often found and cataloged through internet searches using open source intelligence (OSINT).

11. Documentary Evidence

Documentary evidence can be and usually is introduced in the form of documents, such as an invoice, a contract or a will. In recent years, the term can include any media by which information can be maintained.

12. Hearsay Evidence

Hearsay is an out of court statement, that is made in court, to demonstrate the truth of the matter proclaimed. In other words, hearsay is evidence of an utterance or statement that was made other than by a witness while testifying at the hearing in question and that is presented to demonstrate the truth of the matter stated. Hearsay evidence is generally not admissible in court; however, it can be of interest and value in a private investigation where the burden of proof, if there is one, is less vigorous than in court.

13. Prima Facie Evidence

Latin for “at first sight”, prima facie may be used as an adjective meaning “sufficient to establish a fact or raise a presumption unless disproved or rebutted”. Typically presented before trial, this evidence is generally enough to prove something until it is disproved. Also referred to as “presumptive evidence”.

14. Statistical Evidence

Evidence that uses numbers (or statistical data) to back a position is called statistical evidence. This type of evidence is based on information gathering such as surveys or polls.

15. Testimonial Evidence

This is either oral or written statements given by a witness or authority under oath. It can be assembled in court, at a deposition or through a written affidavit.

Benefits of Knowing

Sometimes just keeping in mind what the various types of evidence are will help you identify them as evidence during an investigation. Remember, a small piece of evidence can change the course an ultimately the outcome of a well performed and maintained investigation.

Any tangible evidence must be cataloged and tracked until it’s proper disposal. Use the CROSStrax’s Chain of Custody Template to track the possession of evidence during your next investigation.

Testifying in a Deposition – Best Practices

Testifying in a Deposition – Best Practices

Testifying in a Deposition

A deposition is a witness’s pre-trial, out-of-court testimony taken under oath. A deposition is a part of the discovery process and, in some cases, can be used as evidence at trial. If you are being deposed, you are referred to as, the “deponent”.

Due to the very nature of the investigation business, you will likely become a deponent more often than the average person. In fact, the better of a job you do, the more you will find yourself testifying in a deposition; not always, but that’s usually the way it works out.

Once you’ve completed an investigative assignment, your final report and other evidence collected will be shown to the opposing party, usually by your client or their attorney. Typically, if deposing you is necessary, you will be summoned to the deposition by the opposing attorney.

Only an attorney can depose you, and it is suggested, if your side is represented, your attorney should be present at the deposition to ensure you only answer what is necessary. The entire deposition is preserved verbatim by a court reporter, who is present throughout the session and is, in most cases, who will swear in the deponent.

Examination Under Oath

In matters related to insurance claims, an examination under oath (EUO) is a powerful tool made available to insurers and, in some cases, when performed correctly, can also be a help to insureds. An EUO is a formal proceeding during which an insured, under oath and in the presence of a court reporter, is questioned by an insurance company representative. The difference between an EUO and a deposition is the person administering the EUO is not an attorney.

Environment of a Deposition

During a deposition, once you have been sworn in, the opposing council will begin asking you questions. Some depositions are narrowly tailored and focused on one piece of the case, other depositions can be long, even taking place on separate days, if the opposing council is looking for a complete account of your involvement in the case.

Depositions typically take place in the conference room at a law office, but can sometimes occur over the phone or via video conference. Y\In most cases, you’ll be accompanied by your client’s legal team, opposing counsel, a court reporter, and possibly a videographer.

Sticking to these 10 best practices will ensure you represent yourself well during your appearance at any deposition:

  1. Be professional – Dress appropriately as you would for a day in court. However, avoid overdressing and do not wear flashy jewelry, expensive watches, etc. This may be a turn off to those present at the deposition. Provide your client’s attorney with your résumé prior to the deposition. This will give they attorney a better idea of your character and level of expertise.
  1. Be candid, not a tour guide – “Yes” or “No” answers unless you are specifically asked to elaborate. Even when asked to elaborate, stick to the question asked and keep your answers as narrowly tailored as possible. There is no reason to assist the opposing counsel with their case. Less is more here.
  1. Beware of the pregnant pause – When training people on taking a recorded statement, one of the tools we use to elicit more involved responses, is silence. Next time you talk with someone, ask them a question and when they have answered the question, don’t respond. They will typically begin speaking again, maybe elaborating on the question because they feel you didn’t understand their original response. Don’t fill pauses or silences or attempt to fill in the blanks. It’s not your job to keep those present entertained or comfortable. Trust me, these pauses will be uncomfortable but after a few times, the opposing council will get the picture.
  1. Be prepared but not too prepared – There isn’t a need for you to supply or offer knowledge of documents unless requested in the original summons. Written reports, notes, images, and paperwork are discoverable and can be used as evidence if introduced. Review your documents prior to your deposition.
  1. Don’t be afraid to say, “I don’t know.” – If you don’t know the answer, you can’t be compelled to come up with one just because you’re in a deposition. Simply say ‘I don’t know.’ Don’t feel that just because a question is asked, you are expected to know the answer to it. If you don’t recall what is being asked about, say ‘I don’t recall.’ If you are caught lying in a deposition, you will perjure yourself under oath.
  1. Take your time and pause before each answer – It’s not a race and you will be billing your client for your time. Also, pausing before each response allows your counsel the opportunity to object to questions and it gives you a moment to think about your answer.
  1. Stick to the facts, never embellish – Always answer to the best of your ability, but only if you have firsthand knowledge. Never quote second-hand information as your testimony. You can’t give insight into someone else’s feelings or thoughts.
  1. Keep your cool – Opposing counsel will try to ruffle your feathers and may even try to bully you. Stay calm, cool and collected from the start, to finish. Ultimately, you want to portray professionalism and fairness, never show signs of anger or boredom. If you need a break, simply ask for one. Your counsel will request a five-minute recess if necessary.
  1. Avoid humor – Sarcasm, laughter, and one-liners don’t come across so well in writing. There isn’t a comedic font for the computer, so humor doesn’t come off well on written transcripts. And the obvious, it isn’t the setting for jokes.
  1. Review the deposition – Insist on a complete review of your testimony after the interview is over. You’ll want to check the court reporter’s written account for accuracy and to ensure nothing was left out or may be taken out of context.

It should go without saying, how you conduct yourself during a deposition can make or break the case. Be mindful, at all times, that your deposition is being taken to afford your opponent with legal ammunition to use against the case at trial.  Always be kind and cooperative, but always be mindful of what you utter, and do not volunteer more information than you have to. Keep in mind, you may confer with your attorney at any time during your deposition.

Thoughts?

Do you have any unique story’s regarding a deposition you were involved in? Any other tips to offer on the matter? When is the last time you found yourself testifying in a deposition?

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