The Forensic Security Consultant: Preparation for Litigation Support and the Courtroom
By Douglas L. Florence Sr. CPP and Alan W. Zajic

The selection and use of a security expert can be a challenging part of the litigation process. The security expert should be part of the team, not a predominant ego driven to think he or she is able make or break a particular case. Credibility is the most important element when presenting to the trier of fact. After the basic decision is made to use an expert, then the background he or she has will become important.

When dealing with the gaming environment, the security expert should know what the common practices in the industry are as a whole, what are the local standards are, and what really is the Standard of Care. An experienced gaming security expert will certainly be able to establish the statutory or public law issues as they relate to the jurisdictional standards and compliance. Self-imposed standards (policies and procedures) will also become an issue at the time of trial. A security expert who does not have the gaming component will have difficulty convincing a jury of what is proper.

The role of the expert or experts also has tiers that support your in-house or outside counsel. These roles can be to identify opportunities for an offense in the case, support defending the actions that resulted from one matter to the next and how they impact or compound, or influence the decisions that will be made in the courtroom. The use of props and examples to demonstrate findings, or to present the case or evidence, to a judge or jury is also guided by the forensic security consultant or team.

Video Evidence (The Smoking Gun)

Every day more CCTV systems are installed and used in the industry. The jury pool is well aware of this. It even takes the concepts greatly exaggerated in popular TV shows and tries to apply them to the case being presented. The expert needs to bring a jury back to reality, explaining what is real as compared to what is Hollywood.

When there is no video, or if the camera wasn’t pointed at the subject when the incident occurred, it becomes a challenge to defend. It also creates an opportunity for a plaintiff to prove additional negligence or spoliation.

We recommend that all possible video evidence be carefully reviewed from all possible locations. Making dub tapes from the original can limit defensible actions such as proactive patrols or security presence. The security expert should be used to carefully analyze the video. It will be the most entertaining part of a jury trial. When making copies during discovery, the person making the copies needs to make sure he or she completes it at a high rate of resolution from the original.

This reminds us of a recent matter that required the extensive review of video evidence, involving multiple cameras and different angles of the matter as it developed. In this case, the review resulted in identifying significant points of interest that, when used as an example, drove home the compelling reason that appropriate and escalating actions taken by security personnel were correct. It is also a very tedious role, knowing that the attention to detail can fall in as little as 29 minutes of video review that dictates the discipline that must be taken to not overlook or underestimate the value of a video clip.

It is also important to have a written policy on proper CCTV or video management to establish a chain of evidence that includes property video resources. This will also limit those occurrences of improper observation practices that cloud the value or integrity of any video evidence that will be required in the courtroom or that opposing counsel could use to discredit the persons operating the CCTV system at the time of an event.

Reports and Statements

As in any litigation, the reports and statements in security- or surveillance-related litigation become a focus. Consideration should be made to produce additional reports during discovery that demonstrate that the defendants regularly practice positive security measures and prove that they met the particular duty to provide reasonable care.

Logs can be used as a demonstrative measure of security actions. A log can be quite revealing of the manpower spread and activity, and how much security activity is devoted to people verses assets. A simple breakdown and graph by minutes proves very effective in trial.

The completeness and accuracy of written work is a constant work in progress, as it relates to training and application in the world of security. Simple things like dates and times will certainly be called into question during testimony and especially during closing arguments.

Additionally, keep in mind that each report is a legal document that becomes a permanent written record of that event or occurrence. State and federal statutes mandate that casino operators report certain claims, incidents or gaming crimes. The report is the primary-source information and is the primary source of information for persons who do not have the benefit of having been at the property or having had direct contact on the matter. The most difficult skill for a surveillance agent or security officer to achieve is investigative report writing and being able to give a clear and accurate depiction of the matter to a reader who wasn’t present for the matter or who may be an outside resource for claims resolution. This can include legal departments, risk management, labor relations or law enforcement agencies.

The investigative report can:

• Assist with the identification, apprehension and prosecution of criminals.
• Provide a record of all investigations.
• Become an integral part of an internal investigation.
• Provide information to identify the mode of operation of an offender.
• Assist prosecutors, defense attorneys and other law enforcement agencies.
• Provide a source of information for evaluating an officer’s performance.
• Aid in determining civil liability.
• Be included in an employee’s permanent confidential personnel file.
• Assist the officer before and during a court appearance.
• Provide information for insurance agencies.
• Serve as an information source for the media.

This duty to report for surveillance agents and security officers must also be a written policy that creates a legal and moral duty to investigate and report all crimes and policy matters that come to their attention. Failure to report may be grounds for disciplinary action, and criminal charges may be filed against the surveillance agent or security officer for submitting a false report in those cases that result in lawful detention or become a matter of criminal or civil remedies. The impact of these policies and procedures must be enforceable, and all executives and supervisory personnel who manage the daily operations have to know them thoroughly. This will be more evident when the forensic security consultant makes his or her recommendations for the best-suited executives who may become an active component of the matter and its resolution.

This leads to what we call the "PMK," or the person most knowledgeable, which is a pinnacle component of any litigation and its mitigation. The follow-up actions of persons who review investigation reports, or PMKs, will be based on how they perceive the information contained in the original report. Security personnel have an obligation to these individuals to provide accurate, specific and detailed information to maximize the potential that these individuals will make good choices about what subsequent action should be taken.

Selecting the Person Most Knowledgeable

The PMK is also an important factor in security litigation. I always recommend that the highest management employee who oversees the day-to-day operation be selected to testify about policies and procedures, common practices and the environment. The security expert will have a difficult time assisting in the defense if the PMK testifies that they "do not recall," that "it is not my area," or that "I am not sure" when asked very basic questions during a deposition. Although a certain number of attorneys prefer the "dumb and dumber" approach, it ultimately does not come across well in the final outcome if it goes to trial.

In conclusion, there are many more factors to consider when you are deciding what matters could potentially result in litigation and will require use of a forensic security consultant. Most risk management or loss prevention departments try to process each matter as if it will result in some form of litigation or mitigation of a claim. Surveillance, security and investigations executives have a duty to manage their day-to-day operations in a manner that will not put their property into a position of jeopardy and to recognize that the forensic security consultant is working for their company to provide informed recommendations to counsel in order to achieve the objective or position that counsel will take.

Alan W. Zajic is a Nevada Licensed Security Consultant and Expert Witness with over 30 years of hands-on security and surveillance experience.

Douglas L. Florence Sr. CPP is Director of the Gaming Sector for NiceVision at Nice Systems Inc.