Lawyers should use the pending deluge of disputes and investigations to make intelligence providers work smarter, says the chief executive of Ground Truth Intelligence.

It is not clear whether the economic recovery from the last few extraordinary months is going to be V-shaped or U-shaped, but one thing is not in doubt – there will be much work for the legal community.

In May, the Financial Times reported 'the coming deluge of pandemic litigation' and some commentators have described virus-specific litigation as 'the new asbestos'. Many sectors will be in disarray operationally and financially. Defaults, fraud, and other sources of investigative work are likely to increase markedly. 

Underpinning all this legal work will be a disparate array of gumshoes, spooks and sleuths tasked with finding smoking guns of wrongdoing. They can be critical to the success of any legal case. But are they fit for purpose? 

Some, but not all, investigative firms claim to jet-set around the world, wining-and-dining their supposedly secret sources in search of the intelligence that will crack your case. Pre-Covid, law firms may already have suspected this mystique wasn't always accurate. 

With flights grounded, restaurants closed and the great videoconferencing leveller making it difficult to dazzle with pomp and ceremony, now is the perfect time to press your investigators to show what they're actually going to do for you.

How often have you commissioned an investigative report which promised to 'leverage discreet and exclusive access to a global network of well-placed sources', only to find the exorbitant fees left you and your client feeling short-changed? General information but no evidence or actionable material that you could use?

Now is an opportune time to change how you use investigators and avoid that happening again. Here are three ways to do it.

Firstly – communicate directly with the analyst. As in many professional services relationships, you may have a great relationship with a member of the C-suite, but that is not the person doing the work. Their job is to polish the message and keep you coming back as a client. They are not close to how the information is obtained, and typically do not work on your case. 

You need to talk to the person sourcing the intelligence – no matter how junior they are. Yes, they will be less polished, but they can tell you everything you need to know about the strengths and shortcomings of the information and how it was obtained. If you want to get the most from the investigation, you need to talk to the person actually conducting it.

Secondly, lawyers should push for provenance. If you want to use the information, you need to know where it came from. You also need to be comfortable it was obtained legally – a frequently overlooked problem. Before you even hire an investigator, ask them exactly how they are going to obtain the information and request they show their workings in detail in their final report. Do not let them get away with saying 'confidential sources' when asked where the intelligence came from. This is shorthand for we won't tell you, because it won't look good.

Thirdly, you need to give specific instructions. If you ask for 'due diligence' or a 'background check' or an 'investigative report' – that is what you will get. A generic, lengthy and rarely useful document. Tell the investigators as much as you can about your objectives. What do you want to know and why? How will the information be used – for litigation purposes? for decision-making? contentious negotiations or some other reason? 

Good investigators make hundreds of mini decisions as they conduct their enquiries. Law firms need the bulk to be good decisions, pursuing fruitful lines of enquiry and getting the pertinent information, as opposed to padding out a report. Investigators cannot achieve this without being given specific objectives.

As the trickle of new mandates soon turns into a flood, time will become stretched and the quality of information more important. These simple tactics will make law firms' finite time more efficient and elicit the most value from investigators.

Like other sectors, the world of intelligence and investigations is facing a decade's worth of disruption in just a few months. Law firms can and should use that to their advantage.

Stewart Kelly is chief executive of Ground Truth Intelligence

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