The Bonus and the Old File
You are retained by defense counsel in a civil battery case. Eighteen months ago the plaintiff's employer hired your agency to investigate a workplace threat complaint, and you learned the plaintiff had been accused of threatening a coworker with a box cutter - an accusation the employer closed with a written warning and a confidentiality provision in the settlement. Defense counsel now says, "Hand over your old file - he's put his mental state in issue," and wants you to testify about it. Plaintiff's counsel subpoenas your entire file, both matters. Separately, defense counsel offers a $4,000 bonus "if this thing gets dismissed before trial."
1. The $4,000 bonus. Acceptable, negotiable, or refuse?
Read the worked answer
Refuse, and put the refusal in writing.
- It converts a witness into a bounty hunter. The moment compensation depends on a result, every observation you make becomes arguable: "You got paid $4,000 extra if you found something - and you found something, didn't you?" That question is unanswerable in a way that helps the client.
- It pressures the investigation itself. A bonus tied to dismissal creates a pull toward favorable characterization - the exact distortion that the report-writing and ethics rules exist to prevent.
- It can look like compensation for testimony. Contingent compensation tied to litigation outcomes raises questions about the witness's independence and, in the worst framing, about whether the testimony was bought.
- It is not a favor to the client. Defense counsel may genuinely believe it is harmless. The response is: "I appreciate it, but I'm paid for the work, not the outcome. A contingent bonus would be the first thing plaintiff's counsel asked me about at deposition, and it would hurt you more than the money helps me."
- Document it in the file: bonus offered, declined, on what date. If the offer ever surfaces, the file answers it.
Distinguish: ordinary performance bonuses, flat fees, and hourly rates are fine. A payment keyed to a specific investigative finding or a specific litigation result is not.
2. The prior investigation and the subpoena. What do you do with the old file and the request to testify about it?
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A subpoena is not consent, and "he put his mental state in issue" is counsel's argument, not your decision.
Sequence:
- Notify the former client (or its counsel) immediately, in writing. The confidentiality obligation to that employer survives the end of the engagement and is reinforced here by an express confidentiality provision. The former client is entitled to notice so it can object or seek a protective order.
- Notify your current client's counsel and your agency's qualifying licensee. Do not hand the file to defense counsel on a phone request - a phone request is not a subpoena and not a court order.
- Do not produce voluntarily. Respond to the subpoena by identifying the materials, asserting the confidentiality obligation, and asking the court to rule. Produce only what the court orders.
- Produce nothing that is not called for. Even under an order, seek to limit to what is relevant, and redact unrelated employees and matters.
- Offer alternatives that serve the current client without breaching the old one: your own testimony about what you personally observed in the current matter, and counsel's ability to subpoena the employer's records directly.
The judgment being tested: the fact that the information is useful and the current client is paying does not create authority to disclose it. The authority belongs to the former client and, ultimately, to the court.
3. At trial, defense counsel asks: "In your opinion, was the plaintiff the aggressor in this incident?" How do you handle the question, and what are the traps in your own report?
Read the worked answer
Answer what you observed; do not adopt counsel's conclusion.
- The question asks for an ultimate legal conclusion. "Aggressor" is a label the jury applies after hearing the facts. The correct response: "I can't give you a legal conclusion. I can tell you what I saw: at 21:14 the plaintiff stepped toward the other man, raised his right hand, and closed the distance to about three feet."
- If counsel pushes, the answer stays the same and the judge will sustain the objection. Volunteering the label under pressure is how an investigator's neutrality dies on the stand.
- Separate observation from inference, out loud. "I observed X. My inference was Y. That inference is based on Z." Jurors trust witnesses who make that distinction and distrust those who don't.
Traps in the report itself:
- Any characterization ("aggressive," "nervous," "intoxicated") that is not tied to observed behavior will be walked back line by line.
- Review the report before testifying, but don't read from it unless the rules permit past-recollection-recorded treatment; and never "refresh" with a document you did not author.
- Correct errors on the stand, immediately and without hedging. "That sentence is wrong - the video shows walking, not jogging." A witness who corrects himself is credible; a witness who defends an error is finished.
- Don't guess about distances, times, or speeds you did not measure. "I did not measure that" is a complete and safe answer.
- Don't discuss testimony with other witnesses and don't sit in the courtroom before testifying if exclusion has been requested.
The through-line: your value in the box is that you saw something and can describe it precisely. Every conclusion you add beyond that is a target.