Informal Fact Gathering and Initial Investigation
Before a complaint or answer is filed, the facts giving rise to the particular grievance must be investigated. This initial investigation includes a number of informal steps that my be taken to obtain the facts necessary to file a complaint on behalf of your client or to defend against a complaint that has been filed against your client. Before beginning the exercises, review the specific objectives for this chapter of the test.
· How to structure a factual investigation
· Where to obtain the necessary facts to prove your client's positions
· How to interview clients
· When and how to gather documents that may be used as evidence
· Where to locate witnesses
TESTING YOUR COMPREHENSION
Test your comprehension of Chapter 2 by answering each of the following questions. Circle true or false for each answer. Although the answers may be found in the main text, try to answer each question before referring to the text.
1. T F Fact gathering should only be done by formal means after litigation begins.
2. T F Rule 11 of the Federal Rules of Civil Procedure requires that before any suit is filed, there must be a reasonable inquiry into the facts to ensure a pleading is well grounded.
3. T F A cause of action is a theory of recovery that entitles the plaintiff to recover against the defendant.
4. T F An affirmative defense is relief requested by the defendant which, if proven, entitles the defendant to recover something from the plaintiff.
5. T F One of the basic sources for
informal investigation is the client.
6. T F When you first speak with a client you should identify yourself as a paralegal
7. T F When interviewing a client you should never inquire about the client's financial background.
8. T F Statutes of limitation limit the time period in which an action may be brought against a defendant.
9. T F A subpoena is a written court order compelling a third party to produce evidence.
10. T F Witnesses may be interviewed only after a lawsuit is filed and may never be interviewed during informal fact investigation.
11. T F Potential sources for locating witnesses include the client, telephone directories, voter registration lists, and license bureaus.
12. T F One of the purposes of witness interview is to learn everything the witness knows or does not know that is relevant to a case.
13. T F It is never a good idea to try to pin a witness down to a particular fact during a witness interview.
14. T F Since some witnesses may be uncooperative, do not try to record the interview, but wait until after the interview to write down your thoughts and comments about the interview.
15. T F In some cases, it is a good idea to have the client's file reviewed by an appropriate expert.
APPLYING YOUR KNOWLEDGE
Answer the following questions by applying the information you have learned from the main text. If you need more space for some of the questions, use a separate sheet of paper.
1. Why is it necessary to start with factual investigation, rather than to immediately start researching the law? Are there times when it may be better to research the law before you conduct your factual investigation? When would you want to research the law first?
2. What is the difference between informal and formal fact gathering? What are some of the ways you conduct informal fact gathering? Why is informal fact gathering preferable to formal fact gathering mechanisms?
3. What is the purpose of Rule 11 of the Federal Rules of Civil Procedure? Does your state have a rule similar to Rule 11? What is the rule in your state?
4. What is the purpose of a litigation chart? How do you find the elements to place on the litigation chart? Is a litigation chart equally useful to a defendant? Why?
5. What are some of the methods you can use to record a client interview? What methods do you think work best? What methods do you think work least well? Explain your answers.
6. Other than obtaining information, what are some of the goals of a client interview? How can you insure that some of these goals are met during the interview?
7. There are a variety of interviewing techniques that may be used depending upon the nature of the interview and the character of the witness. What are the types of interviewing techniques that can be used? If you have a hostile witness, what type of questionasking techniques should you use to ascertain information from an unwilling witness?
8. Besides asking questions, the interviewer must also be an effective listener. Listening can be both passive and active. Passive listening includes simple gestures such as nodding of the head, or noncommittal responses such as "I see" and "Please continue." Active listening requires the interviewer to directly respond to the client's statements. For example, the interviewer may summarize what he has heard from the client, or tell the client how he sympathizes with the client's position. When would you want to use passive listening techniques? When would active listening techniques work better?
PROVIDE FOR LEGAL RESEARCH & WRITING
Each of the following projects requires you to prepare documents from the information you have learned in the main text. In some instances, you will also need to conduct some basic legal research. Once you have finished each of the projects, place the projects in your litigation guide for future reference.
1. At pages 25-30 of the main text you are given a sample litigation chart for a contract case. In this assignment you are asked to prepare a litigation chart based upon a claim of negligence. The elements for a claim for negligence are found in the main text at page 24. For purposes of this assignment, assume the following facts:
You are assisting in the representation of the plaintiff in a personal injury action. The client has advised you that she was in an automobile accident while driving from home on her way to work one morning. After stopping at a stop sign, she proceeded through the intersection. A car coming from the opposite direction failed to stop and made a left hand turn into the plaintiff's car. No injuries were sustained, but the plaintiff's car was badly damaged. A police report was made, and there were two bystanders who witnessed the accident. The lawyer has advised you that one possible claim the plaintiff has against the driver of the other car is negligence.
Based upon the information that you have been given, you should be able to complete all parts of your litigation chart with the exception of what formal discovery needs to be taken . Leave this part of the chart blank, but fill in all other parts of the chart.
2. After the client is interviewed, it is important to obtain the client's medical and employment records which will verify and provide evidence of the client's damages. Medical records will help verify the injuries sustained and the cost of treatment. Employment records will verify the time lost from work and the amount of compensation and benefits lost from being out of work.
Using hypothetical case number 3 in the front of your workbook, write a letter to Mr. Kester's employer requesting Mr. Kester's employment records to ascertain the number of days that Mr. Kester has been absent from work due to his accident. Draft the client authorization as well. You should follow the format set forth at pages 48-49 of the main text. A sample letter and authorization are also included in the appendix.
3. Using hypothetical case number 2, make a list of all potential witnesses who should be interviewed. If you are not certain where these witnesses can be located, how might you go about finding the witnesses? What information do you hope to obtain from the various witnesses?
4. Assume that Mr. Samson in hypothetical case number 1 is coming to your office for an interview. Using just the facts you know from the hypothetical, prepare a sample checklist for a client interview. Include in your sample checklist specific areas which you would like to question Mr. Samson about.
5. Using one of the websites identified in the text for locating witnesses, insert your name and determine whether you can locate your address and telephone number. If you can not locate your name, determine whether you can locate the address and telephone number of a friend or relatives.
6. One method of conducting informal fact investigation is by use of the Internet. Using the facts set forth in hypothetical number 1, conduct a search on the Internet to determine if there are any recent cases involving civil rights violations under 42 U.S.C. §1983, and list the cases you find. Identify the websites that you looked at to find your answer.
7. For this assignment you will need to work with another classmate. Each of you should take turns conducting an interview using hypothetical number 5. The first student should play the role of Stella King. The second student should play Dennis Woods. (If necessary, the names can be changed to Steve King and Denise Woods.) Use the initial client interview form below to conduct the interview. Include additional questions as you deem appropriate. The student playing the role of King or Woods should add to the role any information needed to make the interview as realistic as possible.
INITIAL CLIENT INTERVIEW
1. Name:__________________Spouse's name________________
3. Telephone number:____________________________
4. Children Ages
5. Education background commencing with high school: (State name of institution, dates of attendance, and degree obtained)
6. Employment background starting with the most recent job and going backward: (State employer, job title and dates of employment)
7. Military service:___________________________________________
8. Have you ever been arrested? _______ If yes, explain:___________
9. Income and assets:_________________________________________
B. Nature of Claim/Liability
1. Reason for seeking legal advice:______________________________
2. Names of potential adverse parties:__________________________
3. Date of incident:________________________________
4. Have you discussed the incident with anyone else?______If yes,
with whom have you discussed this incident?_________________
5. Have you submitted any claim to your insurance carrier concerning
the incident:_______When was the claim submitted?___________
Have you received any response?__________Has anyone attempted
to contact you to discuss the incident?_______
If so, who?_____________________________________________
6. Have you applied for worker's compensation?_____ When?______
Any response?______________If so, what?_________________
1. What injuries did you sustain?___________________________
2. Were you treated for the injuries?__________When?__________
3. Where did you receive treatment?_________________________
4. Names of all doctors administering treatment: ______________________________________________________________
5. What treatment did you receive?____________________________
6. Did you suffer any property damage?________________________
7. Pain and suffering?________________________________________
8. How has the injury affected your life?_______________________
1. Identify all parties to the incident:__________________________
2. Information about other potential parties:____________________
E. Defenses and Counterclaims
1. Any potential claims by other parties against client?________If yes,
what are the potential claims?________________________________________
1. Were there any witnesses to the incident?_____ If so, what are their
Addresses if known:_________________________________________________
2. Were any statements by the witnesses given to anyone?______
If so, to whom?_________________________________________________
3. Were any other parties injured to your knowledge?_____ If so, who was
injured, and what was the extent of the injuries?________________________
G. Records/Physical Objects
1. Are there any records concerning the incident?______ If so, what records exist?___________________________________________________________________
2. Are there records that are not in the client's possession?_____ If so,
where are the records located?____________________________________________
3. Are there physical objects involved in the incident?_______ If so,
what are the physical objects?____________________________________________
H. Other Law Firms
1. Have other law firms been consulted?_______ If so, what other firms
have been consulted?___________________________________________________
I. Client's Goals
1. What disposition of the matter would the client ideally like to