Chapter 2 - Informal Fact Gathering and Investigation -- Concepts

Question 1

Litigation outcomes are usually decided not by (1) but according to which party’s version of disputed events the (2)–judge or jury–accepts as true. Thus, (3) is important.

Answer 1

1. legal interpretation 2. factfinder 3. evidence

Question 2

Facts are collective pieces of information explaining (1).

Answer 2

1. your client’s version of what happened

Question 3

6 reasons using informal discovery to its full extent (not waiting until formal discovery) is important

Answer 3

1. Better ability to evaluate the case and potential outcome 2. Information obtained early is more likely to be accurate/complete 3. More information likely to be obtained informally–lawsuit makes people cautious/uncooperative 4. Informal discovery is less expensive 5. Rule 11 of FRCP requires reasonable inquiry before a suit is file, to ensure a pleading that is well grounded 6. You can get info without opposing parties participating/knowing about it

Question 4

If you are representing the plaintiff, enough facts must be gathered to state in the complaint a (1), or a (2), which is a theory of recovery that entitles the plaintiff to recover against the defendant.

Answer 4

1. cause of action 2. claim for relief

Question 5

If you work for the defense, you’ll want to gather facts to support an (1), a defense pled by the defendant in the answer that, if proven, denies recovery to the plaintiff. You will often go back and forth between researching (2) and (3), as the theory of the case develops.

Answer 5

1. affirmative defense 2. facts 3. law

Question 6

Identify in advance what claims you must (1) or (2). This is determined by the substantive law underlying the (3), (4) and (5) of your case.

Answer 6

1. prove 2. disprove 3. claims 4. relief 5. defenses

Question 7

A litigation chart is a (1) that sets out what needs to be (2) or (3), and which (4) will help with this. It also helps to pinpoint the (5) of your side’s case as well as the opponent’s.

Answer 7

1. diagram 2. proven 3. disproven 4. admissible evidence 5. strengths and weaknesses

Question 8

4 major components of the litigation plan that are depicted in a litigation chart

Answer 8

1. elements of claims 2. sources of proof 3. informal fact discovery 4. formal discovery

Question 9

(1) for commonly tried claims, will help itemize what elements must be proved–a good place to start for litigation charts. If the claim is based on a statute, read the (2) and look at (3) that deal with elements and jury instructions. If the claim is based on common law, consult (4) covering the claim, and research (5) in the applicable jurisdiction.

Answer 9

1. Pattern injury instructions 2. statute 3. case annotations 4. treatises 5. recent case law

Question 10

4 elements in stating a cause of action for negligence cases

Answer 10

1. A duty of care owed by one party to another 2. A breach of that duty of care 3. Causation (defendant’s actions were the actual and proximate cause of the plaintiff’s injuries) 4. damages

Question 11

4 elements in stating a cause of action for a breach of contract

Answer 11

1. Executed contract 2. plaintiff’s performance, or excuse for nonperformance 3. defendant’s breach 4. plaintiff’s damages

Question 12

5 sources of facts/proof

Answer 12

1. The client 2. Exhibits 3. Witnesses 4. Experts 5. The opposing party

Question 13

Whenever possible, obtain exhibits in the client’s possession or in the possession of third parties, such as (1), (2), (3), (4).

Answer 13

1. physical objects 2. photographs 3. documents 4. records

Question 14

3 examples of the necessity of formal discovery

Answer 14

1. witnesses may be uncooperative and need to be deposed 2. exhibits may need to be subpoenaed 3. you will have to talk to the other party’s lawyer if he/she is represented

Question 15

1. One example of a type of case that can almost entirely use informal means 2. One example of a type of case that will likely require a lot of formal discovery

Answer 15

1. personal injury due to auto accident 2. products liability case

Question 16

3 considerations when deciding hours to spend on a case

Answer 16

1. client’s financial resources 2. amount the client can reasonably expect in a jury verdict 3. amount of work the case requires for adequate preparation

Question 17

4 basic sources for informal investigations

Answer 17

1. Client 2. exhibits 3. witnesses 4. experts

Question 18

4 exhibits to collect in a personal injury case

Answer 18

1. police accident reports 2. hospital/doctor’s records 3. insurance claims records 4. employment history

Question 19

4 things that need to be thoroughly done when filling out a litigation chart

Answer 19

1. Interview the client as often as necessary, especially following up when new info is learned 2. Obtain all key documents, records and other exhibits 3. Identify, locate and interview witnesses–more important for some cases than others (personal injury v. contract, in which exhibits will be more important) 4. Consult appropriate experts if necessary (physicians, technical experts)

Question 20

5 exhibits to obtain in contract disputes

Answer 20

1. contract 2. correspondence 3. invoices 4. shipping records 5. related business records

Question 21

2 components of client interviewing

Answer 21

1. what to get 2. how to get it

Question 22

When you first speak to the client, (1), explain that you are (2) for review by the (3). who will ultimately (4) respecting the case.

Answer 22

1. identify yourself as a paralegal 2. gathering facts 3. lawyer 4. make all decisions

Question 23

A client comes to a legal office to determine (1) relative to his problem and, if so, (2). Clients are often unsure of their (3) and (4), and may be intimidated by a law office.

Answer 23

1. if there are actual legal issues 2. how to deal with them 3. rights 4. obligations

Question 24

3 reasons a client may withhold information or distort facts

Answer 24

1. client feels judged, attempts to hide negative info 2. client tries to satisfy interviewer’s expectations 3. Internal reasons–embarrassment, modesty, fear

Question 25

4 factors that may help may a client more likely to fully disclose

Answer 25

1. Client feels the interviewer has a personal interest in him 2. Client senses that the lawyer is identifying with him (remind him lawyer has been there or worked similar cases) 3. Some clients enjoy being the center of attention and being helpful 4. Client enjoys feeling he is doing the right thing

Question 26

Paralegals who create a (1) and show an (2) and (3) of the client will be more successful in obtaining all the facts, both good and bad.

Answer 26

1. comfortable physical environment 2. understanding 3. appreciation

Question 27

A physical setting that is (1), (2) and (3) will help make a client feel relaxed and comfortable. An initial interview can take (4) hours or more. If possible, schedule client interviews as the (5).

Answer 27

1. informal 2. friendly 3. private 4. 1-2 5. last appointment for the day

Question 28

2 ways to record what the client is saying, and their drawbacks

Answer 28

1. note-taking – can be distracting 2. tape-recording – requires transcription, client may not be comfortable with it

Question 29

One idea is to conduct the (1) of the interview without note-taking, then (2) the importance of recording what he says.

Answer 29

1. initial part 2. discuss with the client

Question 30

2 things you can have the client do to prepare for the first interview

Answer 30

1. collect available paperwork–letters, documents, bills, other records 2. write down everything she can remembers about the legal problems (make sure to protect memo by attorney-client privilege)

Question 31

6 objectives of the initial client interview

Answer 31

1. Conduct yourself in a manner that establishes a good working relationship (greet promptly/personally, make small talk) 2. Learn about client’s background (establishes rapport, may help case) 3. Let the client know what is going to happen during the interview, your objectives 4. Have the client tell her story, without interruptions. Ask an open-ended question to get her started. Note things she says and omits. Paraphrase back to her what she has said. 5. Get a details chronological history of events and other background facts. (make outline to expand on) 6. Ask followup questions on potential problem areas–use specific, focused questions (make sure client knows you need the bad with the good)

Question 32

In thinking of interview questions, it is sometimes helpful to look at books containing (1), which are written questions to the other side.

Answer 32

form interrogatories

Question 33

In probing the witness, look for information that might (1). A good strategy is to ask the client to play (2) and tell you what the other lawyer might say. It is at your peril that you accept the client’s version of the facts; (3), (4) and (5) the facts he gives you.

Answer 33

1. adversely affect the client’s credibility (work history, prior convictions, story omissions) 2. devil’s advocate 3. push 4. probe 5. cross-examine

Question 34

Facts bearing on the liability of all parties must be (1). A (2) works best. Get a (3) of the scene. Establish the (4) of each car before the collision occurred, along with speed, distance, time, and relationship to road markings.

Answer 34

1. fully developed 2. chronology of events 3. detailed description 4. location

Question 35

Damages information must be obtained for the (1) and (2). The (3) for each possible claim should be on your litigation chart–out-of-pocket expenses, lost income, future expenses, future lost income, intangible damages. As a paralegal for the plaintiff’s side, you must determine if the defendant (4). (income, insurance)

Answer 35

1. client 2. all other parties 3. permissible damages 4. has the ability to pay a judgment

Question 36

3 reasons the client’s background matters

Answer 36

1. credibility as a trial witness (education, employment, family history) 2. financial background for assessing damages 3. Can he pay legal fees?

Question 37

It is important to find out (1)–something your client may not have thought of. Sometimes a liable company may be a (2) or a (3) with a different name entirely. It may be helpful to use the state list provided by the (4) or (5). Sometimes there are even (6).

Answer 37

1. who the parties are 2. sole proprietorship 3. corporation 4. secretary of state 5. corporation commission 6. assumed-name index

Question 38

Examine what dirt the other side has, previous transactions, etc. to prepare for (1) and (2).

Answer 38

1. defenses 2. counterclaims

Question 39

Statutes of limitation exist to ensure plaintiffs will not allow a claim to (1), resulting in loss of evidence or faded memories. It is also (2) for the defendant. Ensure you know the (3) to make sure the statute has not been overrun.

Answer 39

1. become 2. peace of mind 3. date when the incident occurred

Question 40

When seeking witnesses, (1) and do not (2).

Answer 40

1. expansively 2. be concerned with the admissibility of testimony at this point

Question 41

Ensure the client brings (1) and keep them. If the client needs them, make (2) for him.

Answer 41

1. all pertinent paperwork records 2. photocopies

Question 42

(1), (2) and (3) physical evidence–most common in negligence and products liability cases.

Answer 42

1. locate 2. obtain 3. preserve

Question 43

Make sure you know whether (1) have turned down your client’s case.

Answer 43

1. other law firms

Question 44

Find out what the client (1)–does it go deeper than (2)? Are the client’s expectations (3)?

Answer 44

1. really wants 2. money damages 3. realistic

Question 45

At the end of the interview, tell the client (1). Do not (2)–it is not your choice. Write a short memo to the lawyer detailing the (3) and (4).

Answer 45

1. you will relate the facts to the lawyer and be in touch 2. make commitments on the case 3. background facts 4. your evaluation of the client and his story

Question 46

A (1) can be helpful for ensuring breadth of the initial interview, but do not (2) to it.

Answer 46

1. checklist 2. limit your questions

Question 47

In complicated cases, it may take (1) to acquire the necessary information. Use follow-up interviews to (2) or to (3).

Answer 47

1. several client interviews 2. follow up on problem areas found in client records 3. follow up on whenever additional info is received, especially if it reveals contradictions

Question 48

3 basic types of exhibits

Answer 48

1. scene 2. physical evidence 3. records

Question 49

If a lawsuit involves an event, investigating the (1) is vital. Visit often. The technical investigation includes taking photographs of (2) from a variety of (3) and making all necessary (4) so that you can make scale diagrams.

Answer 49

1. scene 2. all locations 3. perspectives 4. measurements

Question 50

Photographs should be both in (1) and in (2) and be enlarged to (3) for courtroom use. Diagrams should be at least (4).

Answer 50

1. black and white 2. color 3. 8” x 10” 4. 24” x 36”

Question 51

Make sure to visit the scene at the (1) and (2) on which the event occurred, to capture lighting, traffic and other conditions. If you are (3) or do not (4), a commercial photographer should be hired.

Answer 51

1. same time 2. day of week 3. not a proficient photographer 4. have a witness who can verify the scene

Question 52

For example, for an auto accident, photographs should be taken showing the (1) and the perspectives of (2). If feasible, (3) are always useful too.

Answer 52

1. progression of the drivers views 2. eye witnesses 3. bird’s-eye-view pictures

Question 53

Since the person who took the measurements and made a scale diagram is often the (1) for admission into evidence, it is better to have someone else do this so you will not become an (2).

Answer 53

1. only witness who can qualify the diagram 2. involuntary witness

Question 54

(1), such as vehicles, machinery and consumer products, if not already in other possession, should be (2) and (3) for possible use of trial. Also a (4) should be established at all times. When not possible to move evidence, take thorough (5) and (6) for diagramming.

Answer 54

1. Physical evidence 2. obtained 3. preserved 4. chain of custody 5. photographs 6. measurements

Question 55

2 steps to “preserving” evidence

Answer 55

1. obtain/keep it 2. seal and label objects

Question 56

5 things evidence labels should show

Answer 56

1. description of object 2. where it came from 3. who obtained it 4. when it was taken 5. who received it at your office

Question 57

If evidence does not belong to your client, third parties are probably under no (1). However, most will be (2) and preserve the evidence until (3).

Answer 57

1. legal obligation to preserve the evidence for you 2. cooperative 3. subpoena

Question 58

You may as well obtain all records a client has, because once suit is filed the opposing party will be able to to discover anything that is (1) and (2). (3) are usually available upon request; these are records made by public officers in the course of performing their duties.

Answer 58

1. relevant 2. not privileged 3. Public records

Question 59

Some public documents may be obtained by simply making a proper request to the appropriate (1). In many jurisdictions, persons have a (2) to obtain certain records on demand, such as their own medical reports. A (3) on behalf of the client, coupled with his (4), will usually suffice.

Answer 59

1. public agency 2. statutory right 3. written demand 4. written authorization

Question 60

It is best not to wait until (1) to get records, because they will be helpful in evaluating the case before suit is filed. When records are obtained, keep records of (2), (3), and (5) you got them. Make (5) to mark up.

Answer 60

1. subpoenas 2. how 3. from whom 4. when 5. copies

Question 61

After you have interviewed the client and obtain exhibits, the next stage of informal fact investigation is (1).

Answer 61

1. interviewing witnesses

Question 62

The benefits of interviewing everyone are always tempered by (1). However, ever case has (2) whom you must try to interview regardless of cost. In addition, once taken, a case must be handled (3) regardless of cost.`

Answer 62

1. economic realities 2. critical witnesses 3. competently

Question 63

Interviewing favorable witnesses before unfavorable ones will help you (1) and (2). On the other hand, interviewing unfavorable witnesses right away before their (3) might be beneficial.

Answer 63

1. pinpoint differences in the stories 2. explore these in detail 3. attitudes and recall have solidified

Question 64

6 basic sources for locating witnesses

Answer 64

1. telephone book 2. neighbors at a previous address 3. workers at a former job 4. friends 5. relatives 6. Internet

Question 65

4 great Internet sources for finding witnesses

Answer 65

1. people.yahoo.com (person database) 2. infrogroup.com (businesses compiling) 3. ussearch.com (person database) 4. Google!

Question 66

6 objectives of a witness interview

Answer 66

1. Learn what the witness knows and doesn’t know 2. Get specific, admissible facts 3. Get admissions 4. Get info that might be used to discredit the witness 5. Get leads to other witnesses and info 6. Record interview, or get written statement

Question 67

To figure out what a witness knows, ask (1). For unfavorable witnesses, limit (2) by limiting testimony. Stick only to what the witness (3).

Answer 67

1. open-ended questions 2. damage 3. doesn’t know

Question 68

Pin the witness down–go from (1) to (2), (3) facts. For unfavorable witnesses, try to get admissions of (4).

Answer 68

1. generalizations 2. specific 3. admissible 4. uncertainty

Question 69

Get information used to (1) the witness so he will not be believed at trial. This is called (2).

Answer 69

1. discredit 2. impeachment

Question 70

3 approaches to getting unfavorable witnesses to agree to interview

Answer 70

1. attempt to arrange an interview (imply inevitability of a deposition, which may be a less favored alternative) 2. attempt a surprise interview (stop by office or house–but do not harass or badger) 3. Depose (required)

Question 71

4 steps to structuring the interview

Answer 71

1. review the case file 2. get copies of diagrams, photos, records to use during interview 3. decide if and how to record the interview 4. prepare an outline for the interview

Question 72

4 steps in frequently followed order for witness interviews

Answer 72

1. Witness background 2. Story in witness’ own words 3. Detailed chronological history 4. Questions focused on the theory of the case

Question 73

5 possibilities for recording the interview

Answer 73

1. obtain a written, signed statement (for favorable witnesses) 2. use a court reporter 3. make a tape recording, with consent 4. take notes during the interview 5. make notes after the interview

Question 74

(1) is a strong motivator to inhibited witnesses. Pick a (2) for the interview. Remind the witness it is best to talk when events are (3). Remind him disclosure will help ensure a (4) result.

Answer 74

1. positive reinforcement 2. convenient time and place 3. fresh in mind 4. just and accurate

Question 75

To get the witness talking, use (1), (2) questions. Use (3), (4) to pin down the witness and for potential impeachment.

Answer 75

1. open-ended 2. direct-examination 3. narrow 4. cross-examination

Question 76

4 ways to influence responses

Answer 76

1. let the witness know your attitude on the matter (sympathy for your client) 2. use word choices (how fast v. how slowly) 3. leading questions (The car was going faster than the speed limit, wasn’t it?) 4. tell the witness what other witnesses have said to appeal to desire for consistency

Question 77

After the witness interview, summarize in a memo (1), (2) and (3),

Answer 77

1. Evaluation of witness’ credibility/effectiveness as a trial witness 2. witness’ attitude toward the case 3. where witness’ testimony will help/hurt the case

Question 78

5 types of litigation that almost always use expert witnesses at trial

Answer 78

1. wrongful death 2. medical malpractice 3. product liability 4. major negligence 5. commercial cases

Question 79

2 ways to use an expert

Answer 79

1. review the case file/consult to develop facts and theories for trial 2. be a trial witness

Question 80

Experts are often needed to assist in (1) cases.

Answer 80

1. prima facie

Question 81

Make sure the written material you give any experts provides a (1), but do not give them (2), such as (3), since she may be forced during cross-examination to produce all materials. You may want to (4)

Answer 81

1. complete and neutral picture of the case 2. privileged information 3. work product privilege (lawyer’s thoughts processes/mental impressions) 4. direct the expert to specific problem areas

Question 82

Experts used to provide substantive evidence at trial must be revealed in the (1) stage. Persons providing expert testimony must (2) about the testimony so opposing opportunities have a reasonable opportunity to (3) or (4).

Answer 82

1. discovery 2. prepare a detailed written report 3. cross-examine 4. provide other expert testimony

Question 83

Lecture: 3 questions to ask before beginning an interview with a witness

Answer 83

1. Ask whether witness has retained an attorney–stop interview if so 2. Ask if relative of lawyered witness/opposing party–stop interview if so 3. Ask if it’s a good time to talk; if not, make appointment or give phone number

Question 84

Lecture: Before an interview, prepare by (1) and forming questions, as well as forming questions in cooperation with (2). Also decide what documents you (3) and what you (4),

Answer 84

1. review the file 2. lawyer 3. have 4. need

Question 85

Lecture: It is important to ask (1) questions in the initial interview. It is also important to ask whether the witness has (2) to anyone else, and, if so, who? When? Try to obtain a (3).

Answer 85

1. open-ended 2. given a statement 3. copy of the statement

Question 86

Lecture: As you interview, try to work around (1) but also (2) because they may factor into the case. Do not be (3).

Answer 86

1. biases 2. report them to the attorney 3. argumentative

Question 87

Lecture : As the interview wraps up, (1) back to the client (2) to allow for any error correction. AS if they have any (3) and (4) in case they think of anything.

Answer 87

1. repeat the statements 2. in pieces 3. additional information 4. give them your number