You are a lawyer. You have a client, Clark Clair. Clark speaks to you one day. He explains that one of his employees, Gordon Good, spoke to him the day before and said, "Clark, may I have a word with you? I think Gordon may be stealing some of your things. But I can't really tell you more. Gordon is my brother." Clark says to you, "What should I do?"

The question Clark asks may be more complicated than it appears. The question may call you to provide Clark with an interpretation or interpretations of his legal rights and duties. The question may also implicitly call on you to conduct be an investigation into the facts of the matter. But the question Clark asks also suggests the possibility that he has also presented you with a very different kind of problem.

The question, "What shall I do?," suggests that a person's preferences -- here Clark Clair's -- often (and perhaps always) play an important role in investigation. Furthermore, Clark Clair's question suggests another very important possibility: the pertinent preferences of pertinent actors may be unknown or imperfectly known. (I suspect that our knowledge of human preferences -- even our own preferences -- is always imperfect.)

Economists, decision analysts, and game theorists have recipes and procedures for assessing the impact of preferences on decision making. Unfortunately I do not know enough about those recipes and procedures to make sensible use of them.Note Hence, I shall not have much to say much about the possible use of such recipes and procedures to calculate the appropriate effect of known preferences on the conduct of fact investigation. (If you are better informed than I am, you are very welcome to educate me and your classmates about their possible value for the conduct of investigation.) Despite my considerable ignorance about theories of decision making, however, I do know several useful things about the role of that knowledge (or lack of knowledge) of human preferences can have on fact investigation.

First, (as I have already said) an investigator's knowledge of the preferences of pertinent actors is frequently imperfect. This simple fact suggests that it is often important for investigators to investigate preferences, that investigators are often called upon to try to determine the pertinent preferences of pertinent actors. Hence, for example, sometimes it is is possible and advisable for an investigator (such as a lawyer) to take the simple and straightforward course of asking a person such as Clark Clair questions in an effort to ascertain the preferences of a person such as Clark Clair.

Second, the question, "What do you think I should do?," suggests the very real possibility that pertinent actors do not themselves readily or immediately know or understand their own preferences. Hence, it is entirely possible -- indeed, it is quite likely -- that the task of ascertaining the preferences of even friendly actors such as Clark Clair requires both (i) the gathering of a considerable amount of evidence and (ii) a rather complicated or extensive process of reasoning based on the available evidence about an actor's preferences. In sum, even if one assumes that (i) an actor such as Clark Clair has pertinent preferences and (ii) the essential job of an investigator is "simply" to ascertain the character of a person's existing preferences, it by no means follows that it is a simple matter to ascertain the pertinent preferences of pertinent actors and persons.

Third, the question, "What shall I do?," suggests the possibility that pertinent actors do have preferences but that the preferences they have are vague or fuzzy. This vagueness or fuzziness in turn suggests at least a couple of additional possibilities, including: (i) the job of the investigator may be to try to force pertinent actors to formulate their preferences more precisely, to give their preferences a degree of precision, definition, and discreteness that they did not have before, and (ii) the job of the investigator sometimes is to suggest to pertinent actors (such as Clark Clair) how vague or general preferences might or should be defined.

Fourth, as the very last possibility suggests, sometimes the job of an investigator vis a vis preferences may be persuasion; i.e., sometimes it may be the job or task of an "investigator" (such as a lawyer) to convince or persuade an actor (such as a client) that he or she -- the actor -- should have certain preferences. (Indeed, it is possible -- though by no means inevitable -- that Clark Clair's question, "What shall I do?," constitutes an invitation for his lawyer to tell Clair what his preferences should be.)

So it is important that you, in your role as an investigator --, it is important that you remain alert to the preceding variants and other possible variants of an investigator's judgments and attitudes about the preferences of persons. You cannot, you must not, simply assume that you know the pertinent preferences of the persons who may have the right to force you to respect and implement their chosen preferences.