Chapter 4: Investigation and Evidence

Question 1

The client interview affords the paralegal the opportunity to become an integral part of the litigation team. Although the attorney normally conducts an initial interview, a paralegal often plays an important role in the process. You may be asked to take various levels of responsibility for the interview, including:

Answer 1

1. researching potential causes of action or defenses
2. scheduling the interview,
3. developing an interview questionnaire or form to fit the particular case,
4. gathering forms and documents the client will have to sign,
5. taking notes during the interview, and
6. producing a summary of the interview

Question 2

representation letter

Answer 2

a letter from an attorney to a new client establishing the ground rules of the litigation, including fees, billing rates, retainer, and work to be performed by the law firm

Question 3

retainer agreement

Answer 3

an agreement between an attorney and a client setting forth the fee arrangements and details of the attorney’s obligations

Question 4

release

Answer 4

giving up a claim or right to sue

Question 5

authorization

Answer 5

a signed statement empowering someone (such as a doctor or employer) to give out information that might otherwise be treated as confidential

Question 6

Gathering Forms and Documents for Client Signature

Answer 6

Prior to the actual interview, you should locate copies of all forms that the client might need to sign. The first form to be filled out is the representation letter or retainer agreement, which establishes the ground rules of the litigation, including fees, billing rates, retainer, and work to be performed by the law firm

Question 7

Prior to concluding the interview, review the checklist of information that the client was asked to furnish

Answer 7

If any information is missing, make a written list of it and give it to the client. Be sure to calendar the file to check that you receive everything requested. In a personal injury case the client might also be asked to keep a medical diary, a document in which the client keeps track of medical treatment, daily health complaints, type and amount of medication, mileage to physicians’ offices, and other related medical expenses. The client will be more receptive to keeping the journal up to date if he or she realizes that it will be used in calculating damages and evaluating the case for settlement. As the case progresses, the paralegal might periodically review the journal

Question 8

Interview Summary

Answer 8

Promptly upon completion of the interview, your interview notes should be summarized in a memorandum for the attorney’s review and a copy placed in the client’s file. The interview summary may reveal areas that need further development, either from a legal issue or factual standpoint. You may use the form to develop a to-do list for additional investigation

Question 9

Locating Fact Witnesses or Elusive Defendants

Answer 9

Sometimes, pending litigation causes potential defendants to become elusive. You may be asked to research the opposing party’s address for service of process. This effort should be made early in the investigation so that it does not hamper prompt service of the complaint or petition. Numerous sources are available to help you locate any person, including potential witnesses and defendants. The client can often provide you with names and contact information for witnesses as well as for potential defendants

Today, the Internet is the obvious starting point for information unknown to the client. Several free and fee-based sites provide substantial information about individuals and businesses. Many states and local governments make public documents available through their Web sites. As a result, you can often locate business and personal information through various business and court filings as well as through real property ownership records. Nationwide telephone directories and search engines such as Google will also help you uncover information about people and businesses. Popular social networks also help you locate people and businesses.

Fee-based online legal research databases such as Westlaw also provide numerous sources that are helpful in locating individuals and businesses. You can also search for information related to judges, attorneys, and experts who might be involved in the case, as well as information about you client (there is a good chance that the opposing side will seek information about your client)

Question 10

Steps for Locating the Agent of Corporations or Partnerships

Answer 10

You will need the legal name of the company and the name and address of the party who should be served with the suit. The individual is known as the agent for service of process. If the defendant is a corporation, this information is available from the secretary of state’s office and may be obtained by telephone or use of a research database, such as Lexis or Westlaw. Other services on the Internet also provide this information. In many jurisdictions, the secretary of state has an online home page, making this information readily available. In some states, if a defendant is a partnership or limited partnership, this information may be available from the secretary of state’s office; in other states this information may be filed in the county recorder’s office in the county where the partnership has its principal place of business. This information should be obtained early in the investigative stage of the lawsuit

Question 11

Techniques for Interviewing Fact Witnesses

Answer 11

Even if the statement is tape-recorded, you should take written notes in case the tape player malfunctions. Once the interview has been completed, a typed witness statement should be prepared, either from the recorded interview or from your written notes or statement. This typewritten statement can then be transmitted to the witness for review and signing. Never tape-record a witness’s statement, in person or over the phone, without the witness’s knowledge and permission. In some jurisdictions this is a crime

Question 12

When asking questions, avoid leading questions

Answer 12

A leading question is a question that suggests the answer. A witness should be encouraged to tell a story in his or her own words. Avoid the appearance of rushing the narrative or reacting to the story as it unfolds. Thoroughness is critical in a witness interview. Failure to be thorough can result in a witness’s changing or adding to his or her testimony at the time of trial or deposition

Question 13

Keep in mind that the rules of evidence generally do not allow an attorney to introduce a written statement at trial unless the witness is present in court and testifies in person

Answer 13

If a witness is unavailable at the time of trial, there is, however, a way of presenting that testimony to the court. A formal deposition can be taken. At the time of the interview, therefore, you should determine whether the interviewee would be willing to testify at trial. You should also ask whether the witness plans to leave the area or might be unavailable at the time of trial for some other reason. The attorney can then take steps to legally preserve his or her testimony for trial.

When the interview concludes, prepare a narrative summary of the interview. This summary is then presented to the witness to read and sign, verifying its accuracy. Though a signed statement is not admissible as evidence at trial, even if it is signed under penalty of perjury, it can be used to attack a witness’s credibility if the witness changes his or her testimony

Question 14

Evidence

Answer 14

Proper investigation of any case requires a basic understanding of certain rules of evidence (either state or federal rules, depending on the court in which the matter is filed). These rules ultimately determine what information can be used at trial. Investigation of a case requires the paralegal to obtain information that will be admissible at trial. This does not mean, however, that an investigator should ignore inadmissible evidence; such evidence might lead to other important and admissible evidence

Question 15

Direct Evidence versus Circumstantial Evidence

Answer 15

Evidence may be either direct or circumstantial. Direct evidence is evidence that a witness personally observed, and which, if believed, directly establishes a fact. For example, consider the following situation. Pederson and Denton are involved in an intersection automobile accident. Waters, a fact witness, might testify that he personally observed Denton enter the intersection without stopping for a stop sign. This is direct evidence of the fact that Denton was at fault for the accident. Circumstantial evidence is evidence that does not directly establish a disputed fact. This type of evidence, however, often leads a judge or jury to infer a particular conclusion about the disputed facts. For example, in the case of Pederson and Denton, the witness might not have observed Pederson for sufficient time to have judged his speed. However evidence might be introduced that skid marks left by Pederson indicate he was traveling in excess of the posted speed limit. A jury could draw an inference that Pederson’s speed may have contributed to the accident. Both direct and circumstantial evidence are important in proving your client’s case

Question 16

Forms of Evidence

Answer 16

Presumptions and judicial notice are referred to as forms of evidence because they are ways that attorneys have of proving a point. However, they are very different from the forms of evidence that we see or hear. In a sense, these are legal ways of proving points without testimony or physical evidence. A “presumption” is a rule of law that allows the trier of fact to draw inference-because one fact has been established by traditional evidence another fact also exists. For example, in many jurisdictions, if a party can prove that a letter was mailed, the jury can draw an inference (presume) that it was received. It is important to remember, however, that many presumptions can be rebutted or disproved by other evidence

Question 17

Judicial notice

Answer 17

“Judicial notice” allows a court to find that certain facts are true without the parties presenting evidence of the fact. Courts take judicial notice of facts that are commonly known or accepted. According to Federal Rules of Evidence, Rule 201, a court can take judicial notice of a fact not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Question 18

Electronically stored information (ESI)

Answer 18

Recently, the courts (and the Federal Rules of Civil Procedure) have specifically identified electronically stored information (ESI) as a form of evidence. Electronically stored information includes documents created on computers, e-mails, Web pages, and any other form of electronically created or stored information

To determine whether a particular piece of evidence, verbal or written, is admissible requires knowledge of the appropriate rules of evidence

Question 19

Federal Rules of Evidence

Answer 19

The Federal Rules of Evidence govern the admissibility of evidence in civil and criminal cases in federal court. Although these rules do not apply in state courts, many states have patterned their state evidence rules after the Federal Rules of Evidence. The purposes of the Federal Rules of Evidence are set out in Rule 102: “These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” A complete discussion of the rules of evidence and exceptions is impossible within this chapter or even this book. You will be introduced only to the general principles of the rules of evidence, including an overview of some specific rules of evidence that commonly affect litigation

Question 20

Relevancy

Answer 20

To be admissible, evidence must be “relevant.” Rule 401 states that “Evidence is relevant if (a) it has any tendency to make any fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.” No one piece of evidence need be sufficient in itself to persuade the judge or jury that a particular fact is true. It must only support the existence of the particular fact. In determining relevancy, a question often arises regarding background facts that may be necessary or helpful in understanding the ultimate disputed fact.

Question 21

The following facts generally are found to be irrelevant and inadmissible:

Answer 21

1. Subsequent remedial measures: Where an injury occurs because of some defective or dangerous property, the fact that the condition was repaired is not generally admissible
2. Offer to compromise the claim: A party’s offer to settle or compromise a claim is not admissible
3. Promise to pay medical or other expenses: This is similar to a party’s offer to settle and is not admissible as evidence of liability
4. Existence of liability insurance: Whether or not one has insurance is not relevant to the issue of liability or damages

Question 22

However, not all relevant evidence is admissible evidence

Answer 22

Rule 402 specifically provides that relevant evidence can be made inadmissible by the United States Constitution, by any federal statute, by the Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority. As a result, there are several instances in which relevant evidence is not admissible at trial. In a civil trial, two of the most important rules affecting the admissibility of relevant evidence are Rule 403 and the hearsay rule, Rules 801-807. Rule 403 permits exclusion of relevant evidence if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
The judge determines whether the negative aspects of the evidence outweigh its probative value

Question 23

Evidence of Character and Habit

Answer 23

Rules 404 and 406 deal with the exclusion of another type of evidence that many consider relevant-character evidence. Character evidence includes testimony about a person’s reputation in the community or whether the person is felt by friends and coworkers to be honest or dishonest. In a civil case, character evidence is not admissible if its purpose is to prove that an individual “acted in conformity” with his or her normal character traits on a particular occasion. Under Rule 406, evidence to establish habit-how a person responds to a particular situation-may be admissible if it develops sufficient evidence of a repeated pattern of behavior to the extent that it is an automatic response (e.g., unplugging the coffeemaker after pouring the last cup of coffee)

Question 24

Documentary Evidence

Answer 24

Documentary evidence presents several evidentiary issues. Like all evidence, it must be relevant and not otherwise inadmissible (i.e., it must comply with all rules of admissibility, including the hearsay rule). In addition, before documentary evidence will be admitted, the document must be authenticated and must meet the requirements of the best evidence rule

Question 25

Authentication

Answer 25

Rule 901(a) of the Federal Rules of Evidence describes the requirement of authentication (or identification) of a document. The person presenting the document as evidence must establish that the document is what it purports to be-a contract, warranty, deed, and so forth. This is called “authenticating” the document.

Many examples of methods of authentication are found in Rule 901(b), including testimony of witnesses with knowledge of the genuineness of the document, nonexpert opinion regarding handwriting, voice identification, telephone conversation, and public records or reports. For example, an individual who knew a decedent and often corresponded with him might be able to identify and authenticate a handwritten will. The witness would not have to be a handwriting expert; she would need only a basis for being able to identify the handwriting. Public records may be authenticated through testimony of an employee of the public office that the document in fact came from that office. Because of its nature, electronic evidence presents potential problems with authenticity. However, it is subject to the same rules as any type of evidence

Question 26

Self-Authentication

Answer 26

Rule 902 of the Federal Rules of Evidence permits self-authentication of certain documents without the required testimony of a witness to establish that authenticity. The following types of documents can usually be introduced without any testimony or other evidence showing authenticity:

• public documents,
• certified copies of public records,
• official (government) publications,
• newspapers and periodicals,
• trade inscriptions,
• acknowledged (notarized) documents, and
• commercial paper and related documents

Remember, however, that just because a document is properly authenticated does not mean that the document is admissible. It must satisfy all the conditions of admissibility

Question 27

Best Evidence Rule

Answer 27

At one time, the best evidence rule provided that, in trial, parties had to present the original of any document rather than a copy, unless the original was unavailable. Although the Federal Rules of Evidence do have a rule requiring the original document (Rule 1002), this rule is qualified and parties are often allowed to use copies rather than originals of documents. Unless there is a question regarding the genuineness of the document or unless introduction of a copy would be unfair, the original of the document is not required (Rule 1003). In addition, even when the genuineness is in issue, a copy might be introduced in some situations such as when the original is unavailable or has been destroyed (Rule 1004). As a litigation paralegal, you should take particular care to obtain and safeguard original documents

Question 28

Scientific Evidence and Expert Witnesses

Answer 28

Scientific evidence plays an important role in many lawsuits. For many years the test of admissibility was whether the evidence was based on established legal principles that were generally accepted within the scientific community. This test stemmed from a 1923 appellate case, “Frye v. United States.” In 1933, in “Daubert v. Merrell Dow Pharmaceuticals, Inc.”
the United States Supreme Court interpreted Federal Rule of Evidence 702 and established a different test for the admissibility of scientific evidence, stating:

"”General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence-especially Rule 702-do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.”

Question 29

Rule 702 allows an expert to testify as to scientific evidence when:

Answer 29

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case

Before allowing an expert to present scientific evidence, the trial court may hold a prior hearing to determine if the requirements of Rule 702 are met

Question 30

Hearsay

Answer 30

One of the most involved rules of evidence is the hearsay rule. Hearsay is generally defined as an out-of-court statement introduced in court and offered to prove the truth of the statement made. It is generally a statement made by someone other than the person actually testifying in court. Hearsay includes documents as well as oral statements. The hearsay rules are complex but basically provide that a hearsay statement is not admissible as evidence unless it meets one of the stated exceptions to the rule. The hearsay rule and its numerous exceptions are found in Rules 801-807 of the Federal Rules of Evidence. The underlying principle in attempting to exclude hearsay is to further the underlying role of evidence-to ensure truthful testimony at trial. In the courtroom, the attorneys for all parties have the opportunity to examine and cross-examine. Hearsay testimony does not afford that opportunity and creates an atmosphere of unfairness. On the other hand, the various exceptions to the hearsay rule include situations where truthfulness is likely to be present

Question 31

Exceptions to Hearsay

Answer 31

Rules 803 and 804 of the Federal Rules of Evidence list the exceptions to the hearsay rule. You should be careful not to assume that a statement is automatically admissible because it fits an exception to the hearsay rule. Testimony must still comply with the other rules of evidence discussed earlier in this chapter, including relevancy.

One of the important elements of the definition of hearsay is that the out-of-court statement is used to prove the truth of the statement made. Therefore, if the out-of-court statement is used for another purpose, it may be admissible. The most common example of this is a written statement of a witness. If introduced to prove the truth of the statement, it is hearsay. However, if the witness testifies at trial and gives testimony that conflicts with the written statement, the out-of-court statement can be used to impeach the credibility of the witness. Consider the following. Sheppard witnesses an automobile accident between Hart and Mobley. Shortly after the accident Sheppard is interviewed by a paralegal in the law firm representing Hart. After the interview Sheppard signs a written statement indicating that Mobley ran a red light. If an attorney for Hart tried to admit that written statement at trial in an effort to prove that Mobley did in fact run the red light, the statement would be hearsay (It was made out of court and is used to prove the truth of the statement). However, if Sheppard testifies at trial, and denies that Mobley ran a red light, the attorney for Hart can use the statement to impeach Mobley’s credibility, showing that at some point he told a different story

Question 32

Privileged Communications

Answer 32

Rule 501 of the Federal Rules of Evidence delegates to the courts and state legislatures the responsibility of developing rules for evidence protected by privilege. However, Rule 502 deals with situations in which inadvertent disclosure is made of material protected by the attorney-client or work product privileges. Rule 502 is a result of many of the problems that occur during discovery of electronically stored information. The paralegal is charged with the responsibility of helping the attorney ensure that protected information or evidence is not disclosed during litiation

Question 33

Additional Resources Relating to Evidence

Answer 33

There are several excellent commentaries and treatises on the subject of evidence, including “Wigmore on Evidence” and “McCormick on Evidence.” Check a law library to locate additional information on evidence

Question 34

Methods for Locating and Preserving Evidence

Answer 34

Documents relating to your client, such as his medical bills or records and his employment records, are usually easy to obtain. If you have an authorization for the release of this information signed by the client, you can obtain these documents by sending a copy of that release to the appropriate person or business. For other types of evidence, a telephone call or letter may suffice; if it does not, a subpoena and deposition may be required. Moreover, any evidence in the possession or control of a defendant will have to be obtained through the proper discovery process

Question 35

Court Records-PACER

Answer 35

An important method for locating evidence is checking court records. If any of the parties have been involved in similar cases, court records might reveal this. For example, if a plaintiff has filed prior lawsuits for similar injuries, this could be important to the case. Likewise, if a defendant has been sued previously this might also be important. While an attorney may not be able to refer to prior lawsuits at trial, knowledge about these can lead to other admissible evidence

Court records are generally public records and therefore accessible to the public. Today, many courts include some or all of their court documents on their Web sites. The federal courts have a central system through which individuals can access federal court documents. The system is known as PACER, Public Access to Court Electronic Records. This system allows the public to electronically access case information concerning cases filed in federal courts. Generally this includes the identities of the parties, the attorneys, and a list of documents filed by the court. In many cases, use of the PACER system allows the user to see actual documents filed in the case by the attorneys (e.g., complaints, answers, and motions). Additional information about this system can be found at www.pacer.gov

Question 36

Evidence Control and Retrieval

Answer 36

To avoid charges by the opposition that the evidence has been tampered with or replaced, each piece of evidence should be tracked from its receipt by your law firm until its final introduction as a trial exhibit. Evidence should be marked to indicate its source, date of acquisition, and storage location An “evidence log” will enable you to maintain an accurate record of the evidence, including any transfer of custody. Each time the evidence is removed from its storage location, the removal should be documented on the evidence log.

Complex litigation sometimes presents extra challenges for evidence control and production. Cases often involve hundreds or thousands of documents and may have many attorneys, located in different cities, working on the same case. A paralegal coordinating such a case must be concerned with how to store the documents, where to store the documents, and how to make them available to multiple attorneys who may be geographically separated. One solution is to scan the documents, convert them to electronic format, and store them on a secure Internet site (the “cloud”)

Another concern is that documents be organized in such a way that they can be easily retrieved when the opposing side requests specific documents during the discovery process (Discovery is covered in subsequent chapter in this text) A common practice has been to create a searchable database with relevant fields or features. Features, or database fields, might describe the date of creation, the author, or the subject matter. Because the database is easily searchable, documents meeting certain criteria can be easily identified. For example, if an attorney were looking for all documents written between certain dates, he or she would search the field of the database containing the date of creation. This field would identify all documents created within the specified time frame. The documents could then be retrieved. This process is sometimes referred to as document coding

Question 37

Litigation Holds

Answer 37

To manage the storage of both print and electronic information, many businesses have document retention policies. At regular intervals older documents are destroyed. Paper documents may be shredded, and electronic documents deleted. In some instances, however, documents scheduled for destruction might be potential evidence in a lawsuit. When litigation becomes reasonably probable, the attorney for any company is obligated to instruct the company to preserve relevant documents. This is known as a litigation hold. Serious consequences follow if relevant documents are destroye

Question 38

Expert Witnesses

Answer 38

In a case involving technical or medical issues, expert witnesses are often necessary. Experts can perform several functions in a case. They can be hired in an advisory capacity to explain the technical aspects of the case to the attorney. More often, they are hired to be witnesses during the trial. Before individuals are allowed to testify as experts, they must be qualified by the court to do so. In qualifying experts, the court looks at their education, skill, and experience in that field. If an individual is qualified as an expert, at trial this individual can explain and simplify complicated technical issues for the judge or jury. For example, a jury might have difficulty understanding the mechanical functions of a tire manufacturing plant or the significance of a lung X-ray. Expert witnesses may translate the technical language to easily understood language through photographs, charts, or models. Also, expert witnesses, unlike lay witnesses, are allowed to testify about their expert opinions regarding matters within their expertise.

Question 39

The decision to hire an expert witness is made by the supervising attorney. However, you may be asked to locate an expert. Suggested sources for locating potential experts include:

Answer 39

• professional organizations,
• published court records of experts,
• other attorneys in your office,
• colleges or universities,
• professional journals,
• attorneys who have handled similar litigation, and
• the Internet

If the expert has testified in prior cases, you might wish to talk to the attorney who tried the case to get an evaluation of the expert’s ability as a witness. The demeanor of an expert witness can be even more important than that of a lay witness. Although the expert’s professional credentials are important, his or her ability to explain matters to a judge or jury in a simple and clear manner, without appearing condescending, is just as important

Question 40

Once you have located an expert, you must keep certain practical considerations in mind An expert’s time is very valuable, and use of that time by your law firm can be expensive

Answer 40

Most experts charge the firm not only for the time they spend testifying in court, but also for any time spent in talking to the attorneys (or paralegals). Any interview of an expert must be carefully orchestrated to maximize the expert’s time. Preparation in advance of the interview will obviate the need for a lengthy interview process. Know ahead of time what areas should be covered and make notes. Also, if the expert is local, arranging the interview to take place at the expert’s place of business can save time and therefore expense

Question 41

One pitfall to avoid in securing an expert witness is the “professional testifying expert.”

Answer 41

An excessive number of court appearances can have a negative impact on the jury, especially if that expert has always testified for the plaintiff or for the defendant. An expert whose testimony has been balanced will be more effective. Before deciding to use a particular expert, you should review the expert’s resume and determine whether he or she has testified in prior cases. If he or she has qualified as an expert in prior cases, he or she is likely to be qualified by the court in your case. You should also review all prior cases to make sure that he or she has not given testimony that would contradict the testimony he or she expects to give in your case.

Your responsibilities in the area of expert witnesses may include locating an expert, coordinating the interview of the expert witness with the attorney, taking notes during an interview, reviewing the qualifications of the expert, reviewing prior testimony of the expert, and, if the expert is located some distance away, handling hotel and air travel reservations