Deposition – Training 4 Private Investigators and Process Servers

The Dangers in the Word Assume

The word assume is one of the most dangerous words in the English language. To understand this, all you need do is take the word apart.

Assume = Ass U Me

Making an assumption is one of the quickest ways to make an ass out of you and me.

As a professional skip tracer, when you assume something about the skip or the search results, it is very likely you are creating a scenario which will make an ass out of yourself and possibly your client.

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Concerns Should Be Obvious

The state’s concerns should be obvious to you at this point. Most of them are simply common sense and, when you get down to it, they aren’t even all that burdensome.

There are some basic requirements such as age, training, and the yearly cost of the license. The state’s concerns revolve around the interactions between a PI, the PI’s client, and the public at large. None of those concerns are particularly hard to satisfy.

A good PI knows what he or she can do within the boundaries set by law. Don’t go down the path of thinking you can do anything if the price is right. Remember, the public in general does not have a good understanding of how a PI operates. All they know is what they see on television or read in detective novels. As you will discover later in this course there are serious limitations on PI’s and serious consequences when those limitations are breached.

More About This Course

There are several things to watch for as you are taking this course.

Glossary – There is an extensive glossary of legal terms available. You can reach it by clicking on the Glossary tab in the menu at the top of each page. Also pay attention to the words and phrases in underlined orange text spread throughout the course. Move your mouse over the word and its definition will open in a small popup. Clicking on the word will take you to the glossary entry itself.

Tell me more – You are looking at one of these right now. They are spread throughout the course to provide additional information and insight into that particular topic. Be sure to read each of them as the quiz at the end of the lesson may ask questions about the material they contain. Watch for the bold green “Tell me more” text.

Flashcards – These help increase your understanding and retention of the material which was just presented. When you see one read it, answer it in your mind, and then click on it. The card will turn over to show you the correct answer.

Explain the RCW's

RCW stands for Revised Code of Washington. An RCW, or law, is the result of legislation that has been passed by the House and Senate and has been signed by the Governor. The Revised Code of Washington contains all laws that have been adopted in the State of Washington, as well as a history of all laws that have previously existed or been amended.

Each RCW is given a number. For instance, the RCW 18.165.020 explains the exemptions to the law requiring licensing of private investigators. As you can see, periods (dots) separate the number into three distinct section.

“18” This is the title number. A title is a broad grouping of laws. Title 18 contains laws relating to the various professions which are regulated by the state.

“165” (Written as Chapter 18.165 RCW) This number represents a chapter within a given title. In this case, a chapter holds the laws relating to a particular profession.

“020” (written as RCW 18.165.020) This number represents a section within the chapter. A section contains a law which covers a specific law or set of laws. In this example it is a listing of the exemptions.

One Party Consent

Federal law permits the recording of telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a “one-party consent” law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation.

As noted in this lesson, Washington is a two party consent state.

Blacklisting

Before the advent of the FCRA, blacklists were often used by merchants in towns or cities to avoid extending credit to people who failed to pay other merchants. For instance, a baker might blacklist a customer for failing to pay their bill. When the butcher saw that person’s name on the list he/she would decline to give that person credit. Unfortunately the baker might have blacklisted the individual for reasons other than being credit related such as race, religion, ethnicity, etc.

Constitutional Right to Privacy

1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

3rd Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

4th Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Washington Court Case Numbers

District and Municipal Court Case Number Format:

Case numbers assigned by courts of limited jurisdiction (district and municipal courts) are determined by each court. Such case numbers may consist of all numbers, numbers and letters, or even include other characters such as a dash (-). Although certain courts may attach specific meaning to the case numbers used by their court (such as court branch, type of case, year filed, etc.), these case numbers have no particular meaning to others outside of the court. If you want to know the meaning of a certain district or municipal court’s case number format, contact the court.

Superior Courts – SCOMIS System

The first two digits of the case number are used to indicate the year the case was filed. The third digit is used to designate the case type. The next series of digits is the actual sequential number of the case beginning from 00001 in the current year. The last digit of the case number is called a check digit and is used by the computer to verify the correctness of the previous digits.

Example: Case number 93 1 00042 7 shows that the case was the 42nd criminal case filed in 1993. The check-digit is seven.

Example: Case number 14 3 00108 6 shows that the case was the 108th domestic case filed in 2014.

Unfortunately this system resulted in duplicate numbers from one county to another across the state. This wasn’t a problem so long as you knew in which county to search.

Superior Courts – Odyssey System

For superior courts who have implemented the Odyssey case management system, the new format is similar to the old format; the only difference is the county number is now at the end where the check digit used to be located.

For example: Lewis County is S21 in JIS/SCOMIS. All of their cases will now end in 21 instead of the check digit that traditionally came at the end of the case numbers. The case number 15-1-80304-7 in JIS/SCOMIS would look like 15-1-80304-21 in Odyssey.

This system eliminates the possibility of duplicate case numbers anywhere in the state.

Superior Courts - SCOMIS System

United States Court Flow Chart

PS Training Washington

This flowchart illustrates the court system in the United States. The connecting lines indicate the possible direction of an appeal.

Washington Court Flow Chart

This flowchart illustrates the court system in Washington. The connecting lines indicate the possible direction of an appeal. It is possible, though rare, for a case beginning in a municipal or district court to become an important decision by the state supreme court.

Private Investigator Training Washington

Court of Appeals Divisions Map

Detective Training Washington

Washington’s Court of Appeals is in three divisions as represented on the map to the left.

When the Attorney Work Product Privilege Fails

There are a couple of construction cases out of New York which illustrate the circumstances under which the privilege of attorney work product fails to apply. In Safeco Ins. Co. v. M.E.S., Inc., a suriety (a bonding company) brought an action against the principals (the people financing the construction projects) on several bonds the surety had issued, seeking contractual indemnity for losses the surety alleged it would incur due to the principals’ defaults on several construction projects. Safeco had engaged consultants to evaluate the contractors’ performance on the projects before the defaults occurred, and the consultants issued Safeco reports of their findings.

Safeco claimed the reports were protected from discovery by the work-product doctrine, arguing that they were generated in anticipation of claims arising out of the projects. The contractors argued that Safeco would have performed the same investigation of the underlying projects regardless of whether litigation was anticipated, thus making the reports fully discoverable.

Safeco’s claim of work product was rejected by the court and the documents ordered produced because Safeco failed to convince the court that the same analysis performed by the consultants would not have been undertaken in the ordinary course of its business, which includes, among other things, the evaluation of risks. The court was also influenced by the fact that the consultants had been hired by Safeco to provide construction management advice to Safeco before the default occurred, further blurring the line between services obtained in the ordinary course of business and those obtained in anticipation of litigation.

Typical Courtroom Layout

Legal process server state of Washington This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.

PIPAT - Report Writing - Red Pencil

Hi, I’m Robin Mullins and the author of this course. Please excuse me as I use the first person to tell a little story on myself which, I believe, illustrates the importance of writing quality reports.

Many years ago I was working as a PI for Bellingham attorney Fred Heydrich. He was contracted to accept conflict cases from the county public defender’s office and he used me to do a lot of his leg work.

I still remember, quite clearly, walking into his office one day to drop off a report I had prepared for him. Fred welcomed me and asked me to sit down so he could review the report and then we could discuss it. Taking my seat across from him I settled in to wait for him to finish reading.

Almost immediately he picked up a red pencil from his desk and began marking up the report. Watching upside down I could see he was marking improper grammar, spelling errors, irregular usage, and the like. Being six foot six inches at the time I felt myself begin to shrink in that chair. By the time he was done I couldn’t have been more than an inch and a half tall.

Fred wasn’t trying to embarrass me but he solidified somethings I should have learned in grade school. Communication is about clarity and clarity can only be achieved by paying attention to accepted conventions and attention to detail.

Fred is now Commissioner Heydrich in Whatcom County Superior Court. I now appear before him as a Court Appointed Special Advocate in dependency cases.

I reminded him of this little story but he doesn’t recall it. No reason he should really. But it had a profound influence on me and my career.

PIPAT - Chain of Custody - Sample Form

The pdf below is one possible version of a CoC tracking document.

PIPAT - Collecting Evidence

The tools used in collecting evidence are as varied as there are objects in the world. There is no one method or tool for all types of evidence. The tool used depends on the makeup of the evidence. Liquids are collected in one manner, powders in another, and electronic data in yet another.

Here are few examples of kits available for purchase.

Related image Image result for collecting evidence tools

PIPAT - Tagging Evidence

Evidence tags come in a variety of forms and styles. There are any number of sources for them. Many sources sell complete kits which contain containers and tags for almost any type of evidence.

Here are a few examples.

Image result for tagging evidence

PIPAT - Recorded Evidence

It is vital to know that Washington is a two party states when it comes to audio recordings. Such recordings made without the consent of all parties present at the time are inadmissible in court and the person doing the recording may be subject to criminal penalties. This topic is discussed in greater detail later in this court.

PIPAT - Powers of Arrest re Felonies

These cases relate to the ability of a private citizen to perform an arrest of someone committing a felony in his or her presence.

State v. Malone 106 Wn.2d 607, 724 P.2d 364

State v Miller 103 Wn.2d 792, 698 P.2d 554

The Miller case also makes some important statements regarding the use of force in misdemeanor and felony situations.

PIPAT - Powers of Arrest re Misdemeanors

These cases relate to the ability of a private citizen to perform an arrest of someone committing a misdemeanor in his or her presence.

State v. Gonzales, 24 Wn. App. 437, 439, 604 P.2d 168 (1979)

Guijosa v. Wal-Mart Stores, 101 Wn. App. 777, 791, 6 P.3d 583 (2000)

Opinion letter by the Attorney General

PIPAT - Course Material Outline

Legal powers and limitations.
1. Representation and misrepresentation.
  1. How to properly identify yourself.
  2. Misrepresentation defined.
  3. Problems/liability arising out of misrepresentation.
2. Powers of arrest.
  1. Laws pertaining to arrest by private citizen.
  2. Probable cause.
  3. Potential liability resulting from false arrest claim.
Evidence.
1. Definition.
2. Written.
3. Recorded.
4. Material.
  1. Marking.
  2. Storage.
  3. Chain of custody documentation.
Report writing.
1. Elements of a report.
2. Fact versus opinion or assumption.
3. Penmanship.
Courtroom testimony.
1. Expert witnesses.
  1. Manufacturing evidence.
  2. Perjury.
  3. Discovery.
Confidentiality/privilege.
Federal, state, county, and municipal court systems.
Common sources of public information.
1. Court docket information.
2. U.S. Postal Service.
3. Voter registration.
4. Credit reporting agencies.
5. Department of licensing.
6. Private sources.
Frequent activities in violation of criminal statutes.
1. Privacy laws: Electronic surveillance.
2. Chapter 9.73 RCW privacy violations.
3. U.S. Code violations.
4. Appellate court decisions.
5. Explanation of privacy.
6. Video/photography.
7. Tracking transmissions.
Fair Credit Reporting Act.
1. Permissible purposes of reports.
2. Obtaining information under false pretenses.

Mailing Legal Documents and Time Computation

When service of a legal document involves sending a copy by mail a number of statutes and court rules add a specified amount of time before the service is considered complete. A good example is RCW 4.28.080(17) which states as follows:

(17) In lieu of service under subsection (16) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, “usual mailing address” does not include a United States postal service post office box or the person’s place of employment.

Notice the section in bold. This type of requirement, combined with a close statute of limitations, can result in a service being overturned and a case being dismissed. If the case is of high value, such as a motor vehicle accident, the process server is likely to be held at fault for the case’s dismissal.

The time frame involved is different from statute to statute so do not assume they are all the same.

Local Rules and Time Computation

As it turns out, local court rules can be very important in certain types of cases, especially in family law. Many counties have adopted a nine day rule regarding the service of family law documents which relate to a hearing. Some local rules specify a time of day by which the service must be done.

For example, in Whatcom County Superior Court, any document setting a hearing date must be served by noon of the ninth court day before the scheduled hearing.

In this course we’ll primarily deal with the state’s rules but it is important to know your local rules.

Electronic Record Storage

Given the advent electronic record keeping it is now possible to store attempt and service information indefinitely for little cost. A serious problem can occur if, over time, storage methods change, disappear, or are replaced. One method to combat this problem is to keep the records in different electronic formats. For instance, the information can be stored in the original database and stored in graphic format such as tif or pdf files. These two file types, but especially tif, have shown a longevity better than most other file types.

Jurisdiction

Jurisdiction – definition

Power of a court to adjudicate cases and issue orders.
Territory within which a court or government agency may properly exercise its power. See, e.g. Ruhrgas AG v. Marathon Oil Co. et al., 526 U.S. 574 (1999).
jurisdiction: an overview

One of the most fundamental questions of law is whether a given court has jurisdiction to preside over a given case. A jurisdictional question may be broken down into three components:

Whether there is personal jurisdiction [aka whether the court may even hear the case involving the particular defendant(s)].
Whether there is jurisdiction over the subject matter
Whether there is jurisdiction to render the particular judgment sought.

The term jurisdiction can be best understood by being compared to “power.” Any court possesses jurisdiction over matters only to the extent granted to it by the Constitution, and/or legislation of the sovereignty on behalf of which it functions.

Subject matter jurisdiction is the court’s authority to decide the issue in controversy such as a contracts issue, or a civil rights issue. State courts have general jurisdiction, meaning that they can hear any controversy except those prohibited by state law (some states, for example, deny subject matter jurisdiction for a case that does not involve state citizens and did not take place in the state) and those allocated to federal courts of exclusive jurisdiction such as bankruptcy issues. Federal courts have limited jurisdiction in that they can only hear cases that fall both within the scope defined by the Constitution in Article III Section 2 and Congressional statutes.

Territorial jurisdiction is the court’s power to bind the parties to the action. This law determines the scope of federal and state court power. State court territorial jurisdiction is determined by the Due Process Clause of the Constitution’s Fourteenth Amendment and the federal court territorial jurisdiction is determined by the Due Process Clause of the Constitution’s Fifth Amendment. (For more, see World-Wide Volkswagen v. Woodson; see also International Shoe v. Washington).

Other forms of jurisdiction include appellate jurisdiction (the power of one court to correct the errors of another, lower court), concurrent jurisdiction (the notion that two courts might share the power to hear cases of the same type, arising in the same place), and diversity jurisdiction (the power of Federal courts to hear cases in which the parties are from different states).

Parties will often sue a defendant who is a resident of a different state. For example, motor vehicle accidents often involve parties from different states. For a state court to hear this case, that court will typically need to satisfy the constitutional due process requirement for territorial jurisdiction (see above) as well as the state statutory requirement, which is typically known as a state’s long-arm statute. In Washington, an many other states, this is known as the Non-Resident Motorist Act.

Intoxicants and Professional Process Servers

Is it likely such a situation as just described could actually occur? Probably not. But that isn’t the point. The underlying lesson has to do with your level of integrity and professionalism. Are you willing to make a choice which brings you limited short term pleasure but puts your client at risk?

Our advice – Finish your work for the day and then fully enjoy the stein of beer, glass of wine, or hit of marijuana.

Graphic Representation of the Washington State Court System

The Washington judicial system is relatively straightforward and follows the basic outline of the federal court system. An extra layer is added at the bottom, made up of the municipal and district courts. Both of those are trial courts aka court of original jurisdiction. The superior courts are also trial courts but can act as a court of appeals for the municipal and district courts.

Private Investigator laws Washington

Map of Washington's Court of Appeals Divisions

Policy Making and the Courts

Russell Wheeler described the policy making role of the courts in the following way.

“Making policy (and not just social policy) I think is inherent in the nature of the work that common law courts do, but how they do so, and how much they do so, varies with type of court (e.g., the general jurisdiction state trial level court versus most supreme courts) and the type of case (applying fairly settled principles of law—most cases—versus trying to apply a vaguely worded statute) and type of disposition (overseeing a settlement versus deciding one of the blockbuster cases that the US Supreme Court announced last week). We could spend many days sorting out these differences.”

Court System Flow Chart

There is a great deal of similarity between the Washington State court system and the Federal court system. The primary difference being the source of the case. Those cases involving state law are initiated in the state court system. Those cases involving federal law are initiated in the Federal court system.

Certified Private Investigator Training Washington

Mullane vs Central Hanover Trust

Tell me more

…..The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished, he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit the same or similar crimes, to reform him if possible, and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.” William Geldart, Introduction to English Law 146 (D.C.M Yardley ed., 9th ed. 1984)