Chapter 2 Informal Fact Gathering and Investigation Outline

I. Introduction

Proper gathering and assimilating information, before a complaint is filed are critical components successful litigation. Litigation outcomes are usually decided not by legal interpretations but according to which party’s version of disputed events the fact finder that is, the judge or jury accepts as true. Hence, much time is spent identifying in acquiring admissible and evidence that support your party’s contentions and that refutes the other side’s contentions.

II. Structuring Fact Investigations

Facts are collective pieces of information explaining your client’s version of what happened.

(1) There are two ways of getting the facts.

(a) You can obtain facts informally before filing suit

(b) Or you can get them by a formal means (discovery) after the suit is filed.

Facts can be obtained informally and formally.  Information obtained informally before a suit has been filed is less expensive to acquire, but informal discovery is usually more effective and less expensive than formal discovery, which is the most expensive way to get information.

(2) Obtaining Information

A paralegal may be involved in gathering information, facts, and investigation informally before a complaint and has been filed. There is always the question of what facts are needed. A litigation paralegal’s job is to obtain enough admissible evidence to prove your clients claims and to disapprove the other side’s claims.  If you are representing the plaintiff, enough facts must be gathered to state in the complaint a cause of action, sometimes called a claim for relief.  A cause of action is a theory of recovery that entitles the plaintiff to recover against the defendant.  Exuberant represent the defendant, you will want to gather facts to support an affirmative defense.  An affirmative defense is a defense pled by the defendant in the answer that, if proven, denies recovery to the plaintiff.

(3) Investigation

(a)    Use a system (i.e. litigation chart) that organizes the law and facts based on what the attorney will need to prove if the case goes to trial.

(b)   Use a litigation plan and include Elements of claims, Sources of proof, informal fact investigation, and Formal discovery.

(1)   Use pattern Jury instructions for commonly tried claims as a guide. The instructions will itemize what elements must be proven for each claim, relief, or defense.

(2)   If the claim is based on a statute, read the statute and look at the case annotations that deal with the elements and jury instructions.

(c)    Common Causes of Action for Negligence

·        Plaintiff must allege each of the following elements:

·        A duty of care owed by one party to another

·        A breach of that duty of care

·        Causation (defendant’s actions were the actual and proximate (probable) cause of plaintiff’s injuries)

·        Damages

(d)   Common Causes of Action for Breach of Contract

·        An executed contract

·        Plaintiff’s performance, or excuse for nonperformance

·        Defendant’s breach

·        Plaintiff’s damages

(e)    Sources of Proof (the use of Informal investigation to obtain information)

·        The client (interview)

·        Exhibits and evidence (in client’s possession) and (third parties)

·        Police reports, Police records, medical reports etc.

·        Witnesses (interview)

·        Experts (obtain information)

·        The opposing party

(f)     Sources of Proof (the use of Formal discovery investigation to obtain information)

·        Witnesses (uncooperative) depositions may have to be obtained

·        Information may be obtained through interrogatories (formal questions), depositions, and production of documents.

 

III. CLIENT INTERVIEWS

Client interviewing has two components:

(a)    What information to get.

As a paralegal your job is to simply obtain the facts from the client

(b)   How to get it.

Interviewing techniques enable the paralegal to obtain the facts and evidence properly.

 

Initial Interview:

(1)   Probe client for facts bearing on liability (Details are critical and chronology of events works well.

(2)   Damages

Obtain info from both the client and all other parties.

(3)   Client Background

Personal information i.e. education, employment, family history (important for assessing client’s credibility as a trial witness)

(4)   Parties (ascertain which parties are involved)

(5)   Defenses and Cross-claims (inquire about previous transactions between the parties)

(6)   Statutes of limitation (CCP §312 et. Seq. prescribes the time periods in which actions must be commenced depending upon the type of claim.)

(7)   Witnesses (question client about eyewitness, experts, etc.)

(8)   Records (obtain all documents in clients possession that pertain to claim)

(9)   Physical evidence (objects, physical evidence)

(10) Other law firms (find out if the client has contacted other lawyers)

(11) Client goals (What does the client want i.e. money damages, vindication, satisfaction, relief such as specific performance.)

 

Follow up Interviews:

Most initial interviews of the client will be simple and most of the information can be obtained. In more complex cases, however it may require more than one session to obtain and collect the most basic of information and documents.

 

IV. EXHIBITS ACQUISITION

Exhibits include the scene, physical evidence, documents, and records. Interviews with witnesses and review of exhibits when acquired, particularly documents and business records may disclose additional exhibits. Copying and protection from being lost or stolen is crucial.

  1. Scene - If a lawsuit involves an event, such as an automobile accident or a slip and fall case an investigation of the scene is crucial. (Use Photographs, Diagrams etc. to describe scene)
  2. Physical Evidence – Preserving physical evidence such as vehicles, machinery, and consumer products, if not already in the possession of police, other investigative agencies, or the client, must be obtained and preserved for possible use at trial. Evidence is frequently in the possession of a third party. If there is no agreement with the third party to preserve the evidence than a subpoena may be issued to compel the third party to produce the evidence.
  3. Records – A paralegal should obtain all available documents and records from the client. (a) Pursuant to Evidence Code§1158, persons having a statutory right to obtain their own medical records upon demand. (b) Records are available by subpoena after a suit is filed.

 

V. WITNESS INTERVIEWS

1. Make a list of all know witnesses.

2. The more you know the more accurately you can assess the strengths and weaknesses of the client’s case. Try to interview every witness, favorable, neutral and unfavorable, to find out what each knows. [Determine the most crucial first (favorable)].

3. Locating witnesses can be determined by the client, by accident reports, business records and by using searching records at various administrative agencies.

4. The purpose and goal of the interview is to:

5. Arranging the Interview

Attempt to arrange an interview with a favorable witness. A reluctant witness might have to be reassured of their privacy and told that an informal interview may eliminate the need for a deposition.

6.Record the interview by:

7. Interviewing techniques

Getting witness to disclose fully and accurately is best achieved by minimizing the negative factors and reinforcing the positive ones. Use open ended, direct examination questions to get the witness talking, to obtain the basic story, and to pursue leads.

8. Evaluating witnesses

Following a witness interview, a short memo should be written evaluating the witness and his or her information.

 

VI. EXPERT REVIEWS

Wrongful death, medical malpractice, product liability, major negligence, and commercial cases almost always use expert witnesses at trial. Hiring an expert consultant does not prevent the lawyer from using her as an expert at trial. Pursuant to CCP § 2034 provides a method whereby parties may require, after the initial trial date has been set, the exchange of expert trial witness.

 

VII. COMPUTERIZED FACT GATERING

The use of the computer and of the Internet has become a significant way to gather information in litigation matters. Conducting basic legal research on a specific topic or searching about an area, product, or even information about a company may be done on the Internet. Currently there are many legal websites dedicated to the research of case precedents, codes, statutes and treatises. Search engines such as Yahoo.com or Google.com can be used to conduct searches using key words or terms.