Chapter 2 - Informal Fact Gathering and Investigation -- Concepts Flashcards
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.
- legal interpretation 2. factfinder 3. evidence
Facts are collective pieces of information explaining (1).
- your client’s version of what happened
6 reasons using informal discovery to its full extent (not waiting until formal discovery) is important
- 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
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.
- cause of action 2. claim for relief
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.
- affirmative defense 2. facts 3. law
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.
- prove 2. disprove 3. claims 4. relief 5. defenses
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.
- diagram 2. proven 3. disproven 4. admissible evidence 5. strengths and weaknesses
4 major components of the litigation plan that are depicted in a litigation chart
- elements of claims 2. sources of proof 3. informal fact discovery 4. formal discovery
(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.
- Pattern injury instructions 2. statute 3. case annotations 4. treatises 5. recent case law
4 elements in stating a cause of action for negligence cases
- 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
4 elements in stating a cause of action for a breach of contract
- Executed contract 2. plaintiff’s performance, or excuse for nonperformance 3. defendant’s breach 4. plaintiff’s damages
5 sources of facts/proof
- The client 2. Exhibits 3. Witnesses 4. Experts 5. The opposing party
Whenever possible, obtain exhibits in the client’s possession or in the possession of third parties, such as (1), (2), (3), (4).
- physical objects 2. photographs 3. documents 4. records
3 examples of the necessity of formal discovery
- 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
- 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
- personal injury due to auto accident 2. products liability case
3 considerations when deciding hours to spend on a case
- 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
4 basic sources for informal investigations
- Client 2. exhibits 3. witnesses 4. experts
4 exhibits to collect in a personal injury case
- police accident reports 2. hospital/doctor’s records 3. insurance claims records 4. employment history
4 things that need to be thoroughly done when filling out a litigation chart
- 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)
5 exhibits to obtain in contract disputes
- contract 2. correspondence 3. invoices 4. shipping records 5. related business records
2 components of client interviewing
- what to get 2. how to get it
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.
- identify yourself as a paralegal 2. gathering facts 3. lawyer 4. make all decisions
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.
- if there are actual legal issues 2. how to deal with them 3. rights 4. obligations
3 reasons a client may withhold information or distort facts
- client feels judged, attempts to hide negative info 2. client tries to satisfy interviewer’s expectations 3. Internal reasons–embarrassment, modesty, fear
4 factors that may help may a client more likely to fully disclose
- 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
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.
- comfortable physical environment 2. understanding 3. appreciation
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).
- informal 2. friendly 3. private 4. 1-2 5. last appointment for the day
2 ways to record what the client is saying, and their drawbacks
- note-taking – can be distracting 2. tape-recording – requires transcription, client may not be comfortable with it
One idea is to conduct the (1) of the interview without note-taking, then (2) the importance of recording what he says.
- initial part 2. discuss with the client
2 things you can have the client do to prepare for the first interview
- 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)
6 objectives of the initial client interview
- 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)
In thinking of interview questions, it is sometimes helpful to look at books containing (1), which are written questions to the other side.
form interrogatories
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.
- adversely affect the client’s credibility (work history, prior convictions, story omissions) 2. devil’s advocate 3. push 4. probe 5. cross-examine
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.
- fully developed 2. chronology of events 3. detailed description 4. location
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)
- client 2. all other parties 3. permissible damages 4. has the ability to pay a judgment
3 reasons the client’s background matters
- credibility as a trial witness (education, employment, family history) 2. financial background for assessing damages 3. Can he pay legal fees?
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).
- who the parties are 2. sole proprietorship 3. corporation 4. secretary of state 5. corporation commission 6. assumed-name index
Examine what dirt the other side has, previous transactions, etc. to prepare for (1) and (2).
- defenses 2. counterclaims
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.
- become 2. peace of mind 3. date when the incident occurred
When seeking witnesses, (1) and do not (2).
- expansively 2. be concerned with the admissibility of testimony at this point
Ensure the client brings (1) and keep them. If the client needs them, make (2) for him.
- all pertinent paperwork records 2. photocopies
(1), (2) and (3) physical evidence–most common in negligence and products liability cases.
- locate 2. obtain 3. preserve
Make sure you know whether (1) have turned down your client’s case.
- other law firms
Find out what the client (1)–does it go deeper than (2)? Are the client’s expectations (3)?
- really wants 2. money damages 3. realistic
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).
- 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
A (1) can be helpful for ensuring breadth of the initial interview, but do not (2) to it.
- checklist 2. limit your questions
In complicated cases, it may take (1) to acquire the necessary information. Use follow-up interviews to (2) or to (3).
- 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
3 basic types of exhibits
- scene 2. physical evidence 3. records
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.
- scene 2. all locations 3. perspectives 4. measurements
Photographs should be both in (1) and in (2) and be enlarged to (3) for courtroom use. Diagrams should be at least (4).
- black and white 2. color 3. 8” x 10” 4. 24” x 36”
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.
- same time 2. day of week 3. not a proficient photographer 4. have a witness who can verify the scene
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.
- progression of the drivers views 2. eye witnesses 3. bird’s-eye-view pictures
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).
- only witness who can qualify the diagram 2. involuntary witness
(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.
- Physical evidence 2. obtained 3. preserved 4. chain of custody 5. photographs 6. measurements
2 steps to “preserving” evidence
- obtain/keep it 2. seal and label objects
5 things evidence labels should show
- description of object 2. where it came from 3. who obtained it 4. when it was taken 5. who received it at your office
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).
- legal obligation to preserve the evidence for you 2. cooperative 3. subpoena
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.
- relevant 2. not privileged 3. Public records
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.
- public agency 2. statutory right 3. written demand 4. written authorization
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.
- subpoenas 2. how 3. from whom 4. when 5. copies
After you have interviewed the client and obtain exhibits, the next stage of informal fact investigation is (1).
- interviewing witnesses
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.`
- economic realities 2. critical witnesses 3. competently
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.
- pinpoint differences in the stories 2. explore these in detail 3. attitudes and recall have solidified
6 basic sources for locating witnesses
- telephone book 2. neighbors at a previous address 3. workers at a former job 4. friends 5. relatives 6. Internet
4 great Internet sources for finding witnesses
- people.yahoo.com (person database) 2. infrogroup.com (businesses compiling) 3. ussearch.com (person database) 4. Google!
6 objectives of a witness interview
- 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
To figure out what a witness knows, ask (1). For unfavorable witnesses, limit (2) by limiting testimony. Stick only to what the witness (3).
- open-ended questions 2. damage 3. doesn’t know
Pin the witness down–go from (1) to (2), (3) facts. For unfavorable witnesses, try to get admissions of (4).
- generalizations 2. specific 3. admissible 4. uncertainty
Get information used to (1) the witness so he will not be believed at trial. This is called (2).
- discredit 2. impeachment
3 approaches to getting unfavorable witnesses to agree to interview
- 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)
4 steps to structuring the interview
- 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
4 steps in frequently followed order for witness interviews
- Witness background 2. Story in witness’ own words 3. Detailed chronological history 4. Questions focused on the theory of the case
5 possibilities for recording the interview
- 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
(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.
- positive reinforcement 2. convenient time and place 3. fresh in mind 4. just and accurate
To get the witness talking, use (1), (2) questions. Use (3), (4) to pin down the witness and for potential impeachment.
- open-ended 2. direct-examination 3. narrow 4. cross-examination
4 ways to influence responses
- 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
After the witness interview, summarize in a memo (1), (2) and (3),
- Evaluation of witness’ credibility/effectiveness as a trial witness 2. witness’ attitude toward the case 3. where witness’ testimony will help/hurt the case
5 types of litigation that almost always use expert witnesses at trial
- wrongful death 2. medical malpractice 3. product liability 4. major negligence 5. commercial cases
2 ways to use an expert
- review the case file/consult to develop facts and theories for trial 2. be a trial witness
Experts are often needed to assist in (1) cases.
- prima facie
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)
- 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
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).
- discovery 2. prepare a detailed written report 3. cross-examine 4. provide other expert testimony
Lecture: 3 questions to ask before beginning an interview with a witness
- 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
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),
- review the file 2. lawyer 3. have 4. need
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).
- open-ended 2. given a statement 3. copy of the statement
Lecture: As you interview, try to work around (1) but also (2) because they may factor into the case. Do not be (3).
- biases 2. report them to the attorney 3. argumentative
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.
- repeat the statements 2. in pieces 3. additional information 4. give them your number
