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Chapter Contents

11-1Planning the Interview

Planning an interview involves organizing many details. As a paralegal, you may be responsible for locating a witness, scheduling the interview, determining where the interview should take place, arranging for the use of one of the firm’s conference rooms or other office space for the interview, and managing additional details. Crucial to the success of any interview is how well you prepare for it.

Chapter

Conducting Interviews and Investigations

· Chapter Introduction

· 11-1 Planning the Interview

· 11-1a Know What Information You Want

· 11-1b Standardized Interview Forms

· 11-1c Recording the Interview

· 11-2 Interviewing Skills

· 11-2a Interpersonal Skills

· 11-2b Questioning Skills

· 11-2c Listening Skills

· 11-3 Interviewing Clients

· 11-3a The Initial Client Interview

· 11-3b Subsequent Client Interviews

· 11-3c The Informational Interview

· 11-3d Summarizing the Interview

· 11-4 Interviewing Witnesses

· 11-4a Types of Witnesses

· 11-4b Questioning Witnesses

· 11-4c Checking a Witness’s Qualifications

· 11-4d Winding Up the Interview

· 11-4e Witness Statements

· 11-5 Planning and Conducting Investigations

· 11-5a Where Do You Start?

· 11-5b Creating an Investigation Plan

· 11-5c Locating Witnesses

· 11-5d Accessing Government Information

· 11-5e Investigation and the Rules of Evidence

· 11-5f Summarizing Your Results

· 11-6 Chapter Review

· 11-6aKey Terms and Concepts

· 11-6bChapter Summary Conducting Interviews and Investigations

· 11-6cQuestions for Review

· 11-6dEthics Question

· 11-6ePractice Questions and Assignments

· 11-6fGroup Project

· 11-6gInternet Projects

Change fWhat is That?

Introduction

Paralegals frequently interview clients and witnesses. After the initial interview (which is usually conducted by the supervising attorney), the paralegal may conduct additional interviews to obtain detailed information. How well the paralegal relates to a witness has an important effect on the witness’s attitude toward the attorney or legal team handling the case.

Learning how to conduct interviews and investigations is thus an important part of preparing for your career as a paralegal. In this chapter, you will read about the basic skills and concepts used when interviewing clients or witnesses and conducting investigations.

Planning the Interview

Chapter Contents

Many law firms have preprinted or computerized forms indicating the kinds of information that should be gathered during client interviews relating to particular types of claims. Firms that frequently handle personal-injury claims, for example, often use a personal-injury intake sheet such as that shown in Exhibit 11.1. Client intake forms are also available as part of many legal software programs and from a variety of online sources. They may be completed electronically. Using standardized forms helps to ensure that all essential information will be addressed in the interview.

Exhibit 11.1Personal-Injury Intake Sheet

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In some cases, the information needed is clear from the legal forms or documents that may eventually be filed with the court. For example, a paralegal interviewing a client who is petitioning for bankruptcy or divorce can look at the bankruptcy or divorce court forms during the interview to make sure all required information is obtained.

Remain Flexible

The prepared questions and preprinted forms should only be used as guidelines during the interview. Do not just read the questions word for word from a prepared list or stay rigidly to a planned outline of topics. If you do, you lose an opportunity to interact with the interviewee and gain the interviewee’s trust, and he or she will probably not disclose any information other than what is specifically asked for.

The interviewer should be flexible, listen carefully to the interviewee’s responses, and let those responses guide the questioning. (Remember that you can always ask the interviewee to return to a certain topic later on in the interview.) By focusing too much on your own role and on what your next question will be, you can overlook the importance of what the client or witness is saying. Make sure that you listen to the interviewee’s responses and modify your questions accordingly. Effective listening techniques are discussed later in this chapter.

Plan to Ask Follow-Up Questions

Another important point to remember is to ask for details and clarification after the interviewee has made a statement. Find out who, what, when, where, and how. If an interviewee says, for example, that he saw someone hit Jane in the face, you will need to ask for more specifics, such as:

· How far away was the interviewee at the time?

· What exactly did he see?

· How many times was Jane hit and with what (open hand, fist, weapon)?

· Who else was present?

· Was it light or dark? Inside or outside?

· From what angle did the interviewee view the incident?

· Does he know Jane or her assailant? How?

· What were Jane and the assailant doing before and after the incident?

· What was the witness doing before the incident?

Also, although you should read the case file thoroughly before the interview, try to set aside what you have read or heard about the case. Let the interviewee tell you the story from his perspective and avoid preconceived notions about what he will say.

Chapter Contents

11-1aKnow What Information You Want

Before any interview, you should have clearly in mind the information you want to obtain from the client or witness being interviewed—the interviewee. If possible, discuss with your supervising attorney the goal of the interview and the type of information the attorney hopes to obtain. This will ensure that you and the attorney share an understanding of what topics need to be covered in the interview. Once you know the questions that you want to ask, prepare a checklist or outline in advance so that you can refer to it during the interview. As the Developing Paralegal Skills feature explains, it is most productive to think through what may happen in an investigation before proceeding.

Thinking Through a Fraud Investigation

As a paralegal, you may be asked to help conduct an internal investigation in which someone suspects fraud has occurred in a business. Suppose a client is concerned that an employee may have taken sensitive documents. Here are some key questions that need to be considered:

· Is an internal investigation the appropriate step? In some cases, an internal investigative report may simply serve as a road map for a later investigation by law enforcement agencies. The main reasons to conduct an internal review are to send a clear signal that fraud is not tolerated and to stop the fraud.

· Who is being defrauded? If the harm is to someone not working for the company, outside legal advice is usually advised, and a key question will be whether the company could be liable for fraud committed by an employee.

· What steps are being taken to avoid defaming individuals accused of fraud? A costly defamation suit (discussed in Chapter 14) is possible if an individual is falsely accused.

· Should an employee suspected of fraud have known that his conduct was fraudulent or against company policy? Answering this question will require reviewing company policies and education and training procedures.

· How will the investigation be documented? Usually the investigating paralegal will take notes and, with permission, record the interview. You should sign your notes. An attorney may ask an interviewee to prepare a written statement.

· How will the results be evaluated? Any report should be solidly based on the facts uncovered during the investigation, not on speculation or assumptions.

· What statutes are relevant to the possible fraud? Regulations from state and federal governments increasingly dominate many businesses.

Preparing for an investigation by thinking through all major issues that could arise, sometimes unexpectedly, means the investigation will be more thorough and helpful to the legal team responsible for the matter.

Standardized Interview Forms

Remain Flexible

Plan to Ask Follow-Up Questions

· How far away was the interviewee at the time?

· What exactly did he see?

· How many times was Jane hit and with what (open hand, fist, weapon)?

· Who else was present?

· Was it light or dark? Inside or outside?

· From what angle did the interviewee view the incident?

· Does he know Jane or her assailant? How?

· What were Jane and the assailant doing before and after the incident?

· What was the witness doing before the incident?

One approach is to pretend that you know nothing about the case. Let the interviewee tell you his version of the facts. Then, as the interview unfolds, think about what the person is saying from the perspective of your opponent—why should anyone believe that story? Ask follow-up questions aimed at establishing what makes the person’s story more or less believable. If a witness says a car was going sixty miles per hour, for example, ask how she could tell the speed. If it turns out the witness has been racing cars for the past ten years, this fact can be used to help make the witness’s testimony more credible.Some interviewers record their interviews. Before you record an interview, get permission to do so from both your supervising attorney and the person being interviewed. When you record an interview, state or include at the beginning the following identifying information:

· The name of the person being interviewed and any other relevant information about the interviewee.

· The name of the person conducting the interview.

· The names of other persons present at the interview, if any.

· The date, time, and place of the interview.

· On the record, the interviewee’s consent to having the interview recorded.

If more than one recording file is used, you should indicate at the end of each file that the interview will be continued on the next file in the series, and each subsequent file should contain identifying information. Secure copies of the interview should be stored.

Benefits of Recording

There are several advantages to recording an interview. Having an audio record of the interview reduces the need to take extensive notes during the interview. You can either have the audio file transcribed for future reference or listen to it later (when creating an interview summary, for example) to refresh your memory of how the interviewee responded to certain questions.

You may want to have other members of the legal team read the transcript or listen to the file. Sometimes, what seemed insignificant to you may seem significant to someone else working on the case. Also, as a case progresses, a remark made by an interviewee that did not seem important at the time of the interview may take on added significance in view of evidence gathered later.

Down Side of Recording

There are some disadvantages to recording interviews. If clients and witnesses know everything they are saying is being recorded, they may feel uncomfortable and be less willing to disclose information freely. Such reluctance is understandable in view of the fact that the interviewee does not know what exactly will happen during the interview or how the recording may later be used.

When asking an interviewee for permission to record an interview, you should evaluate how the interviewee responds to this question. Depending on the interviewee’s response, you might consider taking notes instead of recording the session. Another option is to go through the questions you will ask with the interviewee once before asking permission to turn on the recorder.

Chapter Contents

Exhibit 11.1Personal-Injury Intake Sheet

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Remain Flexible

Plan to Ask Follow-Up Questions

· How far away was the interviewee at the time?

· What exactly did he see?

· How many times was Jane hit and with what (open hand, fist, weapon)?

· Who else was present?

· Was it light or dark? Inside or outside?

· From what angle did the interviewee view the incident?

· Does he know Jane or her assailant? How?

· What were Jane and the assailant doing before and after the incident?

· What was the witness doing before the incident?

Chapter Contents

11-1cRecording the Interview

Some interviewers record their interviews. Before you record an interview, get permission to do so from both your supervising attorney and the person being interviewed. When you record an interview, state or include at the beginning the following identifying information:

· The name of the person being interviewed and any other relevant information about the interviewee.

· The name of the person conducting the interview.

· The names of other persons present at the interview, if any.

· The date, time, and place of the interview.

· On the record, the interviewee’s consent to having the interview recorded.

Benefits of Recording

Down Side of Recording

Chapter Contents

11-2 Interviewing Skills

Interviewing skills include interpersonal and communication skills that help you to conduct a successful interview. In this section, you will learn how the use of such skills can help you establish a comfortable relationship with the interviewee. Then, you will read about specific questioning and listening techniques that can help you control the interview and elicit information.

Change fonChapter Contents

11-2aInterpersonal Skills

In conducting an interview, your primary goal is to obtain information. Although some people share information readily, others need prompting and encouragement. If people feel comfortable in your presence and in the interviewing environment, they will generally be more willing to disclose information.

Remember that the interviewee may be nervous or uncomfortable. While you may have conducted many interviews of this nature, your interviewee may be involved in the legal process for the first time. Help put the person at ease as quickly as possible. A few minutes chatting casually is time well spent. Also, saying or doing something that shows your concern for the interviewee’s physical comfort helps to make the interviewee feel more relaxed. You might offer a coffee or another beverage.

Using language that the interviewee understands is essential in establishing a good relationship. If you are interviewing a client with only a grade-school education, for example, do not use the phrase “facial lacerations” when talking about “cuts on the face.” If you are interviewing a witness who does not speak English well, and you are not fluent in the witness’s language, have an interpreter present. Because most clients and witnesses are not familiar with legal terminology, avoid using legal terms that will not be clearly understood. If you must use a legal term, be sure that you define the term clearly.

Chapter Contents

11-2bQuestioning Skills

When questioning witnesses or clients, remain objective at all times and gather as much relevant information as possible. Sometimes, you may find it hard to remain objective when questioning witnesses because you sympathize with the client and may not want to hear about facts contrary to the client’s position. But you need to uncover details that could weaken the client’s case as well as those that support it. Indeed, your supervising attorney must know all of the facts, especially any that might damage the client’s case.

Mask Your Emotions

In some situations, it may be difficult to remain objective not because of your sympathy for the client but because of your own personal biases against the client, the witness, or the case. Interviewers must be careful to evaluate their feelings prior to conducting an interview. If you feel a person’s conduct is morally wrong, you may convey those feelings during the interview. We often communicate feelings nonverbally through unspoken gestures and facial expressions. If an interviewee senses your disapproval, she is likely to limit the information disclosed.

Suppose you are interviewing Sandra, a client who is trying to regain custody of her children. The state removed Sandra’s children because she abused drugs and failed to properly care for the children. You have read the file and strongly disapprove of Sandra’s past conduct and have doubts about whether she has recovered from her drug problem. If you do not set aside your personal feelings before meeting with Sandra, they may affect your interaction and limit the success of the interview.

The experienced legal interviewer uses certain questioning techniques to prompt interviewees to communicate. There are several types of questions, including open-ended, closed-ended, leading, and hypothetical questions. Exhibit 11.2 provides some examples of the types of questions discussed in the following subsections.

Types of Interview Questions

Type of Question	Open-Ended Question	Closed-Ended Question	Leading Question	Hypothetical Question
Definition	A broad, exploratory question that may elicit a lengthy response.	A question phrased in such a way that it elicits a “yes” or “no” response.	A question phrased in such a way that it suggests the desired answer.	A question that asks the interviewee to assume certain facts in forming an answer.
Typical Uses	Mostly with friendly witnesses and clients.	To clarify a witness’s statement or to keep her or him on track. With adverse or reluctant witnesses.	At times with adverse witnesses in interviews. By attorneys to cross-examine witnesses at trial (see Chapter 12).	Primarily with expert witnesses in interviews and during trial.
Examples	· Describe the morning of the accident. What did you do that morning? · What did you see before entering the intersection? · When did you first see the defendant’s car, and where was it? · How fast was the defendant going at the time of the accident?	· Were you late for work that morning? · Was there anyone in the car with you at the time? · Were you already in the intersection at the time you first saw the plaintiff’s car? · Were you exceeding the speed limit at the time the accident occurred?	· You were running late for work that morning, correct? · You saw that the light had turned red before you entered the intersection, didn’t you? · Isn’t it true that you were driving over the speed limit at the time of the accident? · Isn’t it true that you had been out drinking at a bar until late on the night before the accident?	· If a full-sized van is going 60 miles per hour, how far before an intersection must the driver apply the brakes in order to stop the vehicle? · If a 200-pound man drank 14 beers in six hours, how long would it take before the alcohol was out of his system so that it would not affect his ability to drive?

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Open-Ended Questions

The open-ended question is a broad, exploratory question that invites any number of responses. It can be used when you want to give the interviewee an opportunity to talk at length about a given subject. “What happened on the night of October 28—the night of the robbery?” and “What did you see as you approached the intersection?” are open-ended questions. When you ask this kind of question, be prepared for a lengthy response. If a witness has difficulty narrating the events he observed, or if a lull develops during the explanation, you need to encourage the witness to continue by using prompting responses (which will be discussed shortly).

Open-ended questions are useful in interviewing clients or friendly witnesses (witnesses who favor the client’s position). These interviewees are usually forthcoming and you will be able to gain information from them by indicating in broad terms what you want them to describe. Open-ended questions are also a good way for the interviewer to evaluate whether the interviewee’s behavior and overall effectiveness would make her a good witness at trial. Someone who speaks clearly and confidently is likely to be a more persuasive witness than someone who hems and haws.

Closed-Ended Questions

The closed-ended questionclosed-ended questionA question phrased in such a way that it elicits a simple “yes” or “no” answer. is intended to elicit a “yes” or “no” response. “Did you see the gun?” is an example of a closed-ended question. Although closed-ended questions tend to limit communication, they can be useful. For example, if an interviewee tends to wander from the topic being discussed, closed-ended questions can help keep him on track. Closed-ended questions, because they invite specific answers, also may be useful to clarify the interviewee’s previous response and to relax the interviewee in preparation for more difficult questions that follow. In addition, closed-ended questions may help to draw information from adverse witnesses (those not favorable to the client’s position), who may be reluctant to volunteer information.

Leading Questions

The leading questionleading questionA question that suggests, or “leads to,” a desired answer. Interviewers may use leading questions to elicit responses from witnesses who otherwise would not be forthcoming. is one that suggests to the listener the answer to the question. “Isn’t it true that you were only ten feet away from where the murder took place?” is a leading question. Leading questions can be effective for drawing information out of eyewitnesses or clients, particularly when they are reluctant to disclose information. They can be useful for interviewing adverse witnesses who are hesitant to communicate information that may be helpful to the client’s position. They are the primary method of questioning used by attorneys when cross-examining witnesses at trial, as you will read in Chapter 12.

When used with a client or friendly witnesses, however, leading questions have a major drawback. They may lead to distorted answers because the client or witness may tailor the answer to fit her perception of what the interviewer wants to know. For this reason, leading questions should be used cautiously in interviews and only when the interviewer is aware of the possible distortions that might result.

Hypothetical Questions

You may be asked to interview an expert witness to gather information about a case or to evaluate whether that person would be an effective expert witness at trial (expert witnesses will be discussed later in this chapter). The hypothetical questionhypothetical questionA question based on hypothesis, conjecture, or fiction. is frequently used with expert witnesses. Hypothetical questions allow you to obtain an answer to an important question without giving away the facts (and confidences) of a client’s case. For example, you might invent a hypothetical situation involving a knee injury (the same injury sustained by a client) and ask an orthopedic surgeon what kind of follow-up care would ordinarily be needed for that injury.

is frequently used with expert witnesses. Hypothetical questions allow you to obtain an answer to an important question without giving away the facts (and confidences) of a client’s case. For example, you might invent a hypothetical situation involving a knee injury (the same injury sustained by a client) and ask an orthopedic surgeon what kind of follow-up care would ordinarily be needed for that injury.

Chapter Contents

11-2cListening Skills

The interviewer’s ability to listen is one of the most important communication skills. When conducting an interview, you want to absorb the interviewee’s verbal answers and any nonverbal messages. Before the interview, make sure that the room in which it is to be held will be free of phone calls, visitors, and other distractions. Put your cell phone on silent and ask the witness to do the same. During the interview, you can use several listening techniques to maximize communication and guide the interviewee toward full disclosure.

Passive Listening

As noted, the interviewer should listen attentively to the interviewee. It is critical that the client or witness knows that the interviewer is interested in what she is saying. If the interviewee pauses briefly or there is a lull in the conversation, the interviewer can use passive listeningpassive listeningThe act of listening attentively to the speaker’s message and responding to the speaker by providing verbal or nonverbal cues that encourage the speaker to continue; in effect, saying, “I’m listening, please go on.” techniques, which are verbal or nonverbal cues that encourage the speaker to continue. For example, the interviewer might say, “Please go on” or “And what happened then?” A nonverbal cue can be a facial expression or body language that shows you are interested in what is being said. Nodding positively, for example, is an effective way to convey your interest. Maintaining eye contact is another nonverbal cue to indicate interest.

Active Listening

For communication to be interactive, the listener must engage in active listening. Active listeningActive listeningThe act of listening attentively to the speaker’s message and responding by giving appropriate feedback to show that you understand what the speaker is saying; restating the speaker’s message in your own words to confirm that you accurately interpreted what was said. Active listeningThe act of listening attentively to the speaker’s message and responding by giving appropriate feedback to show that you understand what the speaker is saying; restating the speaker’s message in your own words to confirm that you accurately interpreted what was said. involves paying close attention to what the speaker is saying and providing appropriate feedback to show that you understand and may have sympathy for what is being said. Because people do not always say what they mean to say—or what they think they are saying—active listening is key to a productive interview. It allows the interviewer to clarify and confirm the interviewee’s statements throughout the interview.

REFLECTING BACK. One effective active listening technique is for the interviewer to “reflect back,” or “mirror,” what the interviewee has already said. For example, after the interviewee has expressed his thoughts on a topic, you might say, “Let me see if I understand you correctly” and summarize your impression of what was said. If your interpretation is incorrect, the interviewee has the opportunity to make you understand what he meant to say. This technique is useful for clarifying the person’s statement. In addition, it reinforces the idea that you are listening carefully and are interested.

CONTROLLING THE FLOW OF THE INTERVIEW. Active listening enables the interviewer to put the person’s statements into the context of the larger picture and facilitates smooth transitions between interview topics. Suppose you are interviewing a client who is suing her former employer. After telling you about the rude and offensive behavior of her co-workers, she says she just couldn’t go back to work and starts to cry. By restating what she has told you, you can make the client feel you support and identify with her: “I understand that you did not return to work because of the hostility of your co-workers.” You might then move into a discussion of damages by saying, “It sounds as if you’ve been through a lot. Did you go see a counselor or get help from anyone during that time?”

The interviewer who engages in active listening can direct the flow of the interview according to the reactions and responses of the person being interviewed. As the Featured Contributor notes, effective techniques increase the amount and quality of information you gain through interviews.

Featured Contributor

Ten Strategies for Effective Interviews and Investigations

Jennifer J. Allen

Biographical Note

Jennifer Allen received her B.A. in English, cum laude, from Wake Forest University in 1983. She received her J.D. from Wake Forest University School of Law in 1986. She has been a licensed attorney in North Carolina since 1986. Allen has been a faculty member at Davidson County Community College in Lexington, North Carolina, for 23 years. She primarily teaches paralegal, criminal justice, and in-service training for law enforcement officers. In addition, she has taught pre-curricular courses in English, reading, and study skills. She is a recipient of the Excellence in Teaching Award from the National Institute for Staff and Organizational Development (NISOD) located at the University of Texas at Austin.

Paralegals are frequently called upon to investigate various aspects of the cases in which they are involved. Many times this investigation requires that they interview a vast array of people, from clients and witnesses to experts in their field. These ten strategies will help your interviews be more efficient and effective.

1. Keep an open mind. In legal practice, as well as in most areas of life, remember that there are two sides to every story. Don’t jump to conclusions or determine who the good guys and bad guys are until you have all the facts. Even then, you will find that people are complicated and no one is all good or bad.

2. Focus on the facts. Focus on information that can be verified. In an interview, you will often get a mix of facts and opinions. You will also find that the other side will dispute some “facts.” If you focus on facts, the person being interviewed is less likely to go off on a tangent.

3. Verify the facts. The hard truth is that people lie for any number of reasons. Often, it is because they want the person interviewing them to think well of them. All of us slant the facts somewhat in our favor when we are discussing conflicts in our own lives. There are some facts that can’t be verified. If that’s the case, just note the different versions of the facts. People are not always lying when they report different things; they may process the information differently or not all have the same information.

4. Acknowledge emotions without inviting them to overwhelm the interview. People often seek legal assistance during the difficult times of their lives—the death of a loved one, divorce, bankruptcy, etc. Most people feel embarrassed when emotion overtakes them. Have tissues handy, but help the person being interviewed get back under control by asking questions that won’t stir up emotions.

5. Demonstrate compassion with professional boundaries. You will often feel empathy, especially for clients who are in a tough spot. Remember that your role is to help them with their legal troubles. You can’t help with financial, emotional, or psychological troubles.

6. Have a checklist of questions, but don’t be bound by it. It’s a great idea to create checklists of information needed for clients in a variety of legal situations. It’s also a great idea to make a list of questions you want to ask witnesses, experts, etc. However, listen carefully. If the questions take you in another relevant direction, be sure to get the information you need there.

“Don’t jump to conclusions …”

7. Redirect wandering statements. Regardless of who you are interviewing, remember that some people talk more than others. If you find the interview wandering, gently but firmly bring it back to the important issues.

8. Inform and educate without giving legal advice. One of the most important roles that paralegals serve is to help a client navigate the often-baffling process of litigation. Clients and witnesses will feel less anxious if they know what to expect. It’s fine to answer questions such as, “What will my child custody hearing be like?” You should avoid moving away from education and into giving legal advice to answer a question such as, “Do you think I will get custody of my child?”

9. Be hospitable. Be a good host when interviewing people in your office and a good guest when interviewing people at their home or at work. Offering a drink and directions to the bathroom helps relax people. When interviewing people outside the office, be mindful of their time and take as little of it as you can.

10. Keep confidences. This is the most important rule of all. Remember that not only is the information you gather to be kept confidential, but the very identity of the client is confidential. If you work for an attorney who does only criminal law and you mention that a person in the community came to the office, you are revealing a client confidence.

REMEMBER DIGITAL SHADOWS. When planning an interview, do not neglect the “digital shadow” of the person being interviewed. Part of your preparation for any interview, whether of a client or a potential witness, should include investigating their online presence. Look for information about the person being interviewed and what the person may have posted about events related to the case. For example, a witness to a car accident may have sent a tweet about the crash or posted a photo or video. The timeline of events provided by an interviewee may be confirmed or contradicted by social media posts.

Frequent social media users may not recall having used social media to discuss a topic unless you prompt them. “Did you post anything about this to Facebook?” should be added to your standard set of interview questions.

Interviewees’ digital shadows may also tell you a great deal about their potential reliability as a witness. A person with multiple photos of drinking contests may not be as reliable a witness as someone whose online profile focuses on her interest in accounting. By preparing in advance, you can avoid surprises later if such information comes out.

Chapter Contents

11-3Interviewing Clients

Here, we first look at client interviews and then discuss witness interviews. The types of client interviews include the initial interview, subsequent interviews to obtain further information, and informational interviews, or meetings, to inform the client of the case’s status and to prepare the client for various legal proceedings.

Chapter Contents

11-3aThe Initial Client Interview

As discussed in previous chapters, when a client seeks legal advice from an attorney, the attorney normally holds an initial interview with the client. During this interview, the client explains his problem so that the attorney can advise him on possible legal options and potential legal fees. The client and the attorney will agree on the terms of the representation, if the attorney decides to take the case.

Paralegals often attend initial client interviews, although the attorney normally conducts the first interview. Usually, you observe the client and take notes on what the client says. You also provide the client with forms, statements explaining the firm’s fees, and other prepared information normally given to new clients. Following the interview, you and the attorney may compare impressions of the client and of what the client said during the interview.

All people present at an interview should be introduced to the client, their titles given, and the reason for their presence made known. In introducing you to the potential client, the attorney will probably stress that you are not a lawyer and cannot give legal advice. If your supervising attorney does not indicate your nonattorney status to the client, you should do so. If a firm takes a client’s case, the client should be introduced to all members of the legal team working on the case.

A follow-up letter, such as the one shown in Exhibit 11.3, will be sent or e-mailed to the client after the interview. The letter states whether the attorney has decided to accept the case or, if the attorney orally agreed during the initial client interview to represent the client, will confirm the oral agreement in writing.

Exhibit 11.3A Sample Follow-Up Letter E-Mailed to a Client

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Chapter Contents

11-3a The Initial Client Interview

11-3b Subsequent Client Interviews

Paralegals are often asked to conduct additional client interviews once cases are accepted. Assume that a client seeks a divorce. After the initial interview, your supervising attorney may ask you to arrange for an interview to get the information necessary to prepare the divorce pleadings. When scheduling the interview, you should tell the client what kinds of documents to bring to the interview. Then send the client a letter confirming the date and time of the interview and the items you want the client to bring. During the interview, you will fill out the form that the firm uses to record client information in divorce cases.

When conducting a client interview, the paralegal should disclose his or her non-lawyer status if this fact was not made clear earlier. To protect yourself against potential claims that you have engaged in the unauthorized practice of law, clearly state that you are not an attorney and cannot give legal advice.

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Chapter Contents

11-3cThe Informational Interview

The informational interview, or meeting, is an interview in which the client is brought in to discuss legal proceedings. Most clients know little about the procedures involved in litigation, and firms often have paralegals explain procedures and help prepare clients for trial. The paralegal can describe to clients what takes place during the trial, how to dress and conduct themselves appropriately for trial, where to look when they testify, and so forth. The informational interview helps clients understand why proceedings are taking place and their role in those proceedings.

In the Office

Handling Client Documents

Clients frequently give paralegals important documents during interviews. A client might, for example, give you the only copy she has of her divorce agreement. States impose strict requirements on attorneys about the safekeeping of clients’ funds and other property, including documents. You should never rely on memory when it comes to client documents. Immediately after the conclusion of the interview, record the receipt of any documents or other items received from the client. The information may be recorded in an evidence log (discussed later) or as required by the procedures established by your firm to govern the receipt and storage of such property. An evidence log or its equivalent provides you with evidence—should it be necessary—of what you did (or did not) receive from a client. In addition, paper documents should be scanned into electronic case files so that backup copies exist.

Handling Client Documents

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11-3dSummarizing the Interview

The interviewing process does not end with the close of the interview. A crucial step in the process involves summarizing the results of the interview for the legal team working on the case. As a paralegal, you are likely to create an intake memorandum following each initial client interview. If the firm has a prepared intake form for particular types of cases, such as the personal-injury intake sheet referred to earlier and illustrated in Exhibit 11.1, the completed form might serve as the interview summary. Information obtained during subsequent interviews with a client should be summarized in a memo for your supervising attorney or other team members to review and for inclusion in the client’s file.

Do It Now

Your interview summary should be created immediately after the interview, while the session is fresh in your mind. When summarizing an interview, review your notes and, if the session was recorded, review the recording. Never rely only on your memory of the statements made during the interview. It is easy to forget the client’s specific words, and it may be important later to know how the client phrased a response. Relying on memory is also risky because a statement that seemed irrelevant at the time may turn out to be important to the case. Make sure that the facts are accurately recorded. Also note your impressions of the client and the client’s nonverbal behaviors.

Visual Evidence

Depending on the nature of the legal claim being made by the client, you may want to include a visual element or two in your summary. For example, if the claim concerns an automobile accident, you might consider creating a graphic depiction of the accident to attach to the summary. (For a further discussion of the value of visual communications, see this chapter’s Technology and Today’s Paralegal feature.)

Technology and Today’s Paralegal

Communicating Through Graphics

If a picture is worth a thousand words, a bad picture can do as much damage as a thousand badly chosen words. Information may be easier to convey through a chart or diagram than in a narrative. Unfortunately, it is also easy to confuse people with cluttered graphics and badly designed diagrams. Learning to communicate graphically is an important skill for paralegals, because they may be called upon to design courtroom graphics and use graphic skills in developing the facts.

Diagrams and Interviews

Diagrams can help you when you are interviewing witnesses. For example, if you are talking to a car-accident victim or witness, sketching the scene can help the person you are interviewing remember crucial details. Creating an accurate diagram of the accident scene can help you uncover potential contradictions in witnesses’ testimony or discover missing information. Diagrams may be critical to communicating information to a jury about your case. In an accident case, a diagram can show the jury where the witnesses and parties were, helping the jury members to understand the testimony.

Graphics Software

There are many graphics packages to help you produce diagrams and charts. SmartDraw Legal Edition provides business graphics as well as templates for crime scene diagrams, accident reconstruction diagrams, patent drawings, and other legal uses. Many other programs (such as High Impact) help produce accident or crime-scene reconstructions and other useful graphics. Skills in graphics will give you an edge in creating value for a law firm.

Design Principles

One of the best resources for visual display of information is the work of statistician and artist Edward Tufte, dubbed the “Minister of Information” by New York magazine and the “Leonardo da Vinci of data” by the New York Times. Tufte’s books (including The Visual Display of Quantitative Information and Beautiful Evidence) have been cited as influencing products such as the iPhone. Tufte regularly offers seminars on presenting information at various locations around the country (edwardtufte.com).

An example of the impact of the misleading nature of some visual presentations occurred in NASA’s PowerPoint™ presentation to senior management after the Space Shuttle Columbia sustained damage during liftoff that could have been avoided. Tufte’s critique of the presentation was included in the final report of the Columbia Accident Investigation Board as part of its explanation of why NASA made the bad decisions that led to Columbia’s explosion.

Technology Tip

To practice your graphic skills, watch director Errol Morris’s award-winning documentary film The Thin Blue Line, which shows a crime scene repeatedly, based on different witnesses’ testimony in a criminal trial. The film pioneered modern methods of crime scene reconstruction. To improve your graphic skills, make crime scene diagrams based on each witness’s testimony as you listen to each one, and then use your diagrams to illustrate the inconsistencies among the testimonies.

Chapter Contents

11-4Interviewing Witnesses

Witnesses play a key role in establishing the facts of an event. As an investigator, your goal is to elicit as much relevant and reliable information as possible from each witness about the event that you are investigating. Interviewing witnesses is similar to interviewing clients, and many of the interviewing skills that we have already discussed also apply. A major difference is that witnesses may not always be friendly to the client’s position. Here we describe the types of witnesses as well as some skills and principles relevant to investigative interviews.

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11-4aTypes of Witnesses

Witnesses include expert witnesses, lay witnesses, and eyewitnesses. Witnesses are also sometimes classified as friendly witnesses or hostile (adverse) witnesses.

Expert Witnesses

An expert witnessexpert witnessA witness with professional training or substantial experience qualifying him or her to testify as to his or her opinion on a particular subject. has professional training, advanced knowledge, or substantial experience in a specialized area, such as medicine, computer technology, ballistics, or construction techniques. Paralegals often arrange to hire expert witnesses to testify in court or to render an opinion on some matter relating to the client’s case. Expert witnesses are often used in cases involving medical malpractice and product liability to establish the duty, or standard of care, that the defendant owed to the plaintiff. For example, if a client is suing a physician for malpractice, your supervising attorney might arrange to have another physician testify as to the standard of care owed by a physician to a patient in similar circumstances.

Lay Witnesses

Most witnesses in court are lay witnesses. In contrast to expert witnesses, lay witnesseslay witnessesA witness who can truthfully and accurately testify on a fact in question without having specialized training or knowledge; an ordinary witness. do not possess any particular skill or expertise relating to the matter before the court. They are people who happened to observe or have factual knowledge about an event. A physician involved in a financial fraud case, for example, might give testimony about the fraud as a lay witness but not as an expert witness.

Eyewitnesses

EyewitnessesEyewitnessesA witness who testifies about an event that he or she observed or experienced firsthand. are lay witnesses who may testify in court about an event they observed or experienced firsthand. The term eyewitness is deceiving. A better term might be “sense” witness. This is because an eyewitness’s firsthand knowledge of an event need not have been derived from actually seeing the event. An eyewitness may be someone who heard a telephone conversation between an accused murderer and an accomplice. A blind man may have been an eyewitness to a car crash, because he heard it.

In interviews, eyewitnesses are ordinarily asked to describe an event in their own words and as they recall it. Eyewitness accounts may be lengthy, and the paralegal may want to record the interview session to ensure accuracy. You may also find that different eyewitnesses to the same event give contradictory accounts of what took place because people’s perceptions differ. You will deal with many kinds of witnesses and clients and, as the Ethics Watch feature below reminds us, caution is always in order.

Ethics Watch

Interviewing Clients and the Unauthorized Practice of Law

Paralegals must be especially careful not to give legal advice when interviewing clients. Suppose that you are interviewing a client, Collins, who was injured in a car accident and is suing the other driver for negligence. Collins previously told your supervising attorney and you that the accident was the result of the other driver’s negligence. During your follow-up interview, however, Collins says to you, “What would happen, in a lawsuit such as mine, if the plaintiff was looking in the backseat to see why her baby was crying? Could the plaintiff still expect to win in court?”

You know that under the laws of your state, contributory negligence on the part of the plaintiff (discussed in Chapter 14) could bar recovery of damages. Should you explain this to Collins? No. Even though the question is phrased as a hypothetical, it is possible that your answer could affect Collins’s actions. Tell Collins that you are not permitted to give legal advice but that you will relay the “hypothetical” question to your supervising attorney.

This action would be consistent with the following codes and guidelines:

· NFPA Model Code of Ethics and Professional Responsibility, Section EC-1.8: “A paralegal shall comply with the applicable legal authority governing the unauthorized practice of law in the jurisdiction in which the paralegal practices.”

· The ABA Model Guidelines for the Utilization of Paralegal Services advises that it is improper for attorneys to allow paralegals to take responsibility for giving legal opinions to clients.

· NALA Code of Ethics and Professional Responsibility, Canon 4: “A paralegal must use discretion and professional judgment commensurate with knowledge and experience but must not render independent legal judgment in place of an attorney.”

Reprinted by permission of the National Federation of Paralegal Associations, Inc. (NFPA®), www.paralegals.org.; Copyright 1975; Adopted 1975; Revised 1979, 1988, 1995, 2007. Reprinted with permission of NALA, the Association for Paralegals-Legal Assistants. Inquiries should be directed to NALA, 1516 S. Boston, #200, Tulsa, OK 74119, www.nala.org.

Friendly Witnesses

Some witnesses to an event may be the client’s family members, friends, or co-workers who want to be helpful in volunteering information. These witnesses are regarded as friendly witnessesfriendly witnessesA witness who is biased against your client’s adversary or sympathetic toward your client in a lawsuit or other legal proceeding. You may think that friendly witnesses are the best kind to interview, and they often are. They may also be biased in the client’s favor, however, so the paralegal should look closely for the actual facts (and not the witness’s favorable interpretation of the facts) when interviewing friendly witnesses.

Hostile Witnesses

Witnesses who may be prejudiced against your client or friendly to your client’s adversary are regarded as hostile witnesseshostile witnessesA witness who is biased against your client or friendly toward your client’s adversary in a lawsuit or other legal proceeding; an adverse witness. (or adverse witnesses). Interviewing them can be challenging. Sometimes the witness has an interest in the outcome of the case and would be in a better position if your client lost in court. For example, if the client is a tenant who refuses to pay rent until the landlord repairs the roof, then the paralegal interviewing the landlord’s building manager should be prepared to deal with that person as a potentially hostile witness.

Some hostile witnesses refuse to be interviewed. On learning that the alternative might be a subpoena, however, a hostile witness may consent to at least a limited interview. If you plan to interview hostile witnesses, contact and interview them early in your investigation. The longer you wait, the greater the chance that they may be influenced by the opposing party’s attorney or the opinions of persons sympathetic to the opposing party.

When interviewing hostile witnesses, be careful to be objective, fair, and unbiased in your approach. This does not mean that you ignore your client’s interests. On the contrary, you will best serve those interests by doing all you can to keep from further alienating a witness whose information might ultimately help your client’s case. Be careful not to disclose information that the hostile witness might report back to the opposing attorney.

Chapter Contents

Witnesses include expert witnesses, lay witnesses, and eyewitnesses. Witnesses are also sometimes classified as friendly witnesses or hostile (adverse) witnesses.

Expert Witnesses

An expert witnessexpert witnessA witness with professional training or substantial experience qualifying him or her to testify as to his or her opinion on a particular subject.

Hostile Witnesses

Chapter Contents

11-4bQuestioning Witnesses

When you are asking questions as a legal investigator, you should phrase your questions so that they lead to the most complete answer possible. Investigative questions should thus be open ended. Compare, for example, the following two questions:

1. “Did you see the driver of the green van run the stop sign?”

2. “What did you see at the time of the accident?”

The first question calls for a “yes” or “no” answer. The second question, in contrast, invites the witness to explain fully what she actually saw. Something else that the witness saw could be important to the case—but unless you allow room for the witness’s full description, you will not learn this information.

Notice that the first question also assumes a fact—that the driver of the green van ran the stop sign. The second question makes no assumptions and conveys no information to the witness that may influence the answer. Generally, the less the witness knows about other witnesses’ descriptions, the better, because other descriptions could influence the witness’s perception. You want to find out exactly what the witness observed, in her own words.

Chapter Contents

11-4cChecking a Witness’s Qualifications

11-4c Checking a Witness’s Qualifications

When interviewing a witness during the course of an investigation, you often will not know whether the testimony of that witness will be needed in court or even whether the claim you are investigating will be litigated. Nonetheless, you should operate under the assumption that each witness is a potential court witness. Make sure that the witness is competent to testify, and is reliable and credible.

Competence

Under the Federal Rules of Evidence, a person is competent to be a lay witness as long as she has personal knowledge of the matter. Thus, only if a potential witness did not actually see, hear, or perceive the events in some way will she be judged not competent to testify. Although state rules of evidence vary, most states also define competence for lay witnesses broadly. Expert witnesses are qualified only if they possess special knowledge, skill, experience, or education.

As part of a factual investigation into a client’s legal claim, a paralegal may contact witnesses or other sources for information. Although a restaurant is not an ideal setting for discussing confidential information, sometimes it is not possible to meet a witness or other information source in an office environment. What are the benefits of meeting in a public location? What are some potential problems with such a meeting place?

Credibility-Because it is easy to establish competence for most witnesses, the primary issue is generally not whether a witness can testify but whether the testimony will be credible, or believable. The parties to a lawsuit can attack the credibility of an opponent’s witness and try to show that the witness is not telling the truth or is unreliable. In federal courts and most state courts, the credibility or reliability of a witness’s testimony can be called into question by evidence that points to the witness’s character for truthfulness or untruthfulness. Thus, the paralegal investigating the case should inquire into any matters that tend to show whether the witness is honest.

For example, does the witness abuse drugs or have a reputation in the community as a troublemaker or liar? Has the witness been convicted of a crime? If so, was it a felony, or did it involve any dishonesty or false statement? How long ago was the conviction? Under the federal rules, a witness’s credibility can be attacked by evidence of a conviction for a felony or a conviction for any crime involving dishonesty or false statements that occurred within the last ten years.

Bias

The paralegal should investigate the witness’s possible bias. Does the witness have an interest in the claim being investigated that would tend to make his testimony less credible? Is the witness a relative or close friend of someone (including another witness or a party) involved in the claim? Does the witness hold a grudge against someone involved? If the answer to any of these questions is yes, the witness’s testimony may be discredited in court and will probably not be as convincing as testimony given by an unbiased witness.

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11-4dWinding Up the Interview

At the conclusion of an interview, the paralegal should ask if there is anything else the witness would like to add. This gives the witness the opportunity to expand on areas not previously discussed or explain an answer previously given. Does the witness have a website or a Facebook or Twitter account? The paralegal should verify the witness’s mailing address, physical address, e-mail address, and phone number. It is also a good idea to get the name and phone number of a friend or relative living in the area whom you can contact to locate the witness if he moves before the trial.

Whenever you interview a witness, take thorough and accurate notes and prepare a memo to your supervising attorney. Include in the memo your evaluation of the witness’s credibility and a description of any nonverbal communication that you thought was relevant. For example, did the witness seem uncomfortable with some aspect of the interview or become nervous when asked questions about a particular topic?

Chapter Contents

11-4eWitness Statements

You may also prepare a formal witness statement. Check with your supervising attorney before preparing such a statement, because formal witness statements may have to be given to the opposing party under applicable discovery rules (discussed in Chapter 10). A witness statement is a written document setting forth what the witness said during the interview. The witness is given an opportunity to review the contents of the statement and then signs the statement to verify its contents. Exhibit 11.4 below shows the type of information normally contained in a witness statement, and Exhibit 11.5 presents excerpts from a sample witness statement.

Statutes and court rules vary as to the value of witness statements as evidence. Usually, statements made by witnesses during interviews cannot be introduced as evidence in court to prove the truth of what the witness said, but can be used for other purposes. For example, if a hostile witness’s testimony in court contradicts something he said during your interview, the witness statement may be used to impeach the witness—that is, to call into question his testimony or demonstrate that he is unreliable. Witness statements also can be used to refresh a witness’s memory at trial or in depositions.

Assume that you work for Allen Gilmore, the attorney representing the plaintiff in the hypothetical case discussed in Chapter 10. Recall that the plaintiff in that case, Katherine Baranski, is suing Tony Peretto for negligence. Peretto ran a stop sign at an intersection, and his car collided with Baranski’s. Further assume that the case is still in its initial stages. Gilmore has just met with Baranski for the initial client interview. You sat in on the interview, listened to Baranski’s description of the accident and of the damages she sustained as a result (medical expenses, lost wages, and so on), and took notes.

After the interview, Gilmore asks you to do a preliminary investigation into Baranski’s claim. It is now your responsibility to find the answers to a number of questions. Did the accident really occur in the way perceived by Baranski? Exactly where and when did it happen? (See the Developing Paralegal Skills feature.) How does the police report describe the accident? Were there witnesses? Was Peretto insured, and if so, by what company? What other circumstances (such as weather) are relevant? Your supervising attorney will want to know the answers to such questions before advising Baranski as to what legal action should be pursued.

11-5Planning and Conducting Investigations

Because the facts are often crucial to the outcome of a legal problem, investigation is an important part of legal work. Attorneys often rely on paralegals to conduct investigations, and you should be prepared to accept the responsibility for making sure that an investigation is conducted professionally. In the following pages, you will read about the basics of legal investigation—how to plan and undertake an investigation, how the rules of evidence shape the investigative process, and how important it is to carefully document the results of your investigation. Of course, much of the investigation will be done online, searching for the sources recommended in this discussion.

You have already read about one aspect of investigations—interviewing witnesses. A preliminary investigation, however, can involve much more. For one thing, before witnesses can be interviewed, they must be located. Information relating to the case may also have to be obtained from a police department, weather bureau, or other source.

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11-5aWhere Do You Start?

Developing Paralegal Skills

Checking the Accident Scene

Gina Hubbard, a paralegal, and her supervising attorney, Juan Calpert, have just concluded an intake interview with a new client. The client was involved in an automobile accident, and the driver of the other car, who sustained serious injuries, is suing the client for damages. The client maintains he was not at fault and has asked Calpert to defend him in the lawsuit. The attorney asks Gina to obtain a copy of the police report on the accident to verify the exact location of the accident, along with other pertinent information, such as photographs taken by police officers. Then Gina should go to the accident site to learn what she can about the site.

Both Gina and the attorney know that this case may be settled early on, and therefore it may be too soon to hire a private investigator to investigate the accident scene. Even if the case is not settled before trial and an investigator is hired later, months may pass and the scene may have changed. Road repairs may alter the area, new signs may be installed, or the street may be widened. It is therefore important that Gina visit the site right away. She makes a list of the equipment she needs to take with her to use when checking the site.

Tips for Checking an Accident Scene

· Take a digital camera or your cell phone that has a camera with you at all times so you can include the photos in the file.

· Take a digital camcorder and digital audio recorder as well. You may want to dictate notes about your observations or record an interview with an eyewitness should you encounter someone at the site who saw the accident.

· Use an iPad, laptop, or smartphone so you can create a Google map of the location.

· Take a pencil and pad of paper to create sketches of the area, and be sure to include in the sketches any obstacles that could interfere with visibility.

· Include a tape measure or other measuring device in the tool kit as well. This will allow you to obtain precise measurements so that you can create a scale for your photographs and sketches.

As in any legal investigation, your point of departure is the information you already have about the matter. Begin with the statements made by Baranski during the initial client interview and summarized in your notes. She described what she remembered about the accident, including when it occurred. She said she thought that the police investigator had the names of some persons who had witnessed the accident. Baranski also stated that she was employed as an associate professor teaching math at Nita State University, earning about $64,000 a year. Using this information, you can map out an investigation plan.

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You may also prepare a formal witness statement. Check with your supervising attorney before preparing such a statement, because formal witness statements may have to be given to the opposing party under applicable discovery rules (discussed in Chapter 10). A witness statementwitness statementThe written record of the statements made by a witness during an interview, signed by the witness. is a written document setting forth what the witness said during the interview. The witness is given an opportunity to review the contents of the statement and then signs the statement to verify its contents. Exhibit 11.4 below shows the type of information normally contained in a witness statement, and Exhibit 11.5 presents excerpts from a sample witness statement.

Exhibit 11.4Information Contained in a Witness Statement

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Exhibit 11.5A Sample Witness Statement (Excerpt)

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Chapter Contents

11-5bCreating an Investigation Plan

Creating an Investigation Plan

An investigation planinvestigation planA plan that lists each step involved in obtaining and verifying facts and information relevant to the legal problem being investigated. is a step-by-step list of the tasks that you must complete to verify factual information you need to obtain relating to a legal problem. In the Baranski case, the steps in your investigation plan would include those summarized in Exhibit 11.6 and discussed next. Make sure your supervising attorney approves the investigation plan. Throughout the investigation, keep in touch with your supervising attorney about your progress.

Contacting the Police Department

The initial step in your plan should be to contact the police department. You want to look at a copy of the police report of the accident, view any photographs taken at the scene, get the names of persons who may have witnessed the accident, and, if possible, talk to the investigating officer.

Contacting and Interviewing Witnesses

Next, you want to contact and interview any known witnesses and document their descriptions of what took place at the time of the accident. Known witnesses include the driver (Peretto) of the vehicle that hit Baranski, the police officer at the scene, and the witnesses noted in the police investigation report. If Peretto is aware of Baranski’s intention to sue, he will probably have retained an attorney. If he has, you are not permitted to contact him directly—you may communicate with him only through his attorney.

Obtaining Medical and Employment Records

To justify a claim for damages, you need to determine the nature of the injuries suffered by Baranski as a result of the accident, the medical expenses that she incurred, and her income (because she lost income as a result of the accident). To get this information, you need copies of her medical and employment records.

The institutions holding these records will not release them to you unless Baranski authorizes them to do so. Therefore, you need to arrange with Baranski to sign release forms to include with your requests for copies. A sample authorization form to release medical records is shown in Exhibit 11.7. If possible, make sure that Baranski signs these forms before she leaves the office after the initial interview. Waiting for her to return the signed forms may delay your investigation. In addition to obtaining medical records, you may be asked to do some research on the types of injuries suffered by Baranski and related information. Typically this requires consulting medical texts and specialized resources on medicine for lawyers.

Contacting the National Weather Service

Weather conditions at the time of the accident may be consequential. If it was raining, for example, Peretto’s attorney may argue that water on the road prevented Peretto from stopping. You then want to determine what the weather conditions were at the time of the accident by contacting the National Weather Service and consulting other records. When you interview eyewitnesses, ask them about weather conditions at the time of the accident.

Obtaining Vehicle Title and Registration Records

To verify that Peretto owns the vehicle that he was driving at the time of the accident, you need to obtain title and registration records. Usually, these can be acquired from the state department of motor vehicles, although in some states the secretary of state’s office handles such records. The requirements for obtaining such information vary from state to state and may include the submission of special forms and fees. It may be possible to conduct this search online.

Contacting the Insurance Company

Once you learn the name of Peretto’s insurance company from Baranski or from the police report, contact that company to find out what insurance coverage Peretto has and the limits of his liability under the insurance policy. Insurance companies usually are reluctant to give this information to anyone other than the policyholder. They sometimes cooperate with such requests, however, because they know that if they do not, the information can be obtained during discovery, should a lawsuit be initiated.

Using a Professional Investigator’s Services

Depending on the circumstances, your supervising attorney may decide to use a professional investigator for certain tasks, including those just described. An experienced investigator often has useful contacts with law enforcement officers, subject-matter experts, and other sources. These contacts can speed up the investigation and may give the investigator access to information that others could not easily get. Access to some government and private databases is restricted to government agents and licensed investigators. Attorneys may hire professional licensed investigators to obtain facts omitted from police reports, search public records, serve subpoenas, evaluate trial presentations, and conduct surveillance on parties important to the case.

You may work with the investigator. For example, your supervising attorney may ask you to arrange for the investigator to inspect and take photographs of the accident scene. You may also work with the investigator to determine the credibility and effectiveness of certain witnesses. In addition, you may meet with the investigator to review discovery documents to provide additional insight or generate investigative leads.

Locating witnesses can be difficult and time consuming, and attorneys sometimes use investigators for this task. As discussed next, however, paralegals today can find people online much more easily than was once possible, potentially reducing the need for outside assistance.

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11-5cLocating Witnesses

A challenging task for a legal investigator can be locating a witness whose address is unknown. Suppose, for example, that in the Baranski case the police investigation report lists the name, address, and phone number of Edna Ball, a witness to the accident. When you call her number, you learn that the phone has been disconnected. You go to her address, and the house is vacant. What is your next step? A good starting point is to visit other homes in the neighborhood. Perhaps someone living nearby knows Edna Ball and can give you some leads as to where she is. Other sources are discussed below.

Finding People

One important role paralegals play in many law practices is locating witnesses and other relevant people. Searches take advantage of Internet tools that both simplify and complicate the search. These tools allow fast searches of large databases. They also make things more complex because the results may include information about multiple people with the same or similar names. With practice, you will develop online search methods that will aid you greatly in locating people.

SERVICES. For example, many paralegals use Internet people-finding services to locate witnesses (and witnesses’ assets, if needed). Some online services charge a fee for each search, depending on the type of report requested (simple address record, background check, e-mail address, assets). The services check public records, telephone directories, court and criminal records, and a variety of other sources and provide results quickly and efficiently. (For an example, go to whitepages.com.) Both of the largest online legal research services (Westlaw and Lexis, discussed in Chapter 8) offer people-finding services as well.

SOCIAL MEDIA SEARCH ENGINES. There are also important search engines that focus on social media sites and so-called “deep web” information from Web pages that search engines like Google do not index. For example, Spokeo looks for data across social media sites and seeks information from e-mails as well. It can find personal photos or profile data on Facebook and other postings. Another approach is taken by services such as PeekYou, which finds associations between people and web addresses. While it uses the same information as used by Google, it packages the data in a way that is more useful for finding out about a person. Try these tools out using your own name to get an idea of how they work.

Other Information Sources

Other sources of information include:

· media reports (newspaper articles and television videos covering the event);

· court records (probate proceedings, lawsuits, and the like);

· deeds to property (usually located in the county courthouse);

· birth, marriage, and death certificates and voter-registration lists;

· the post office (at which a witness may have left a forwarding address);

· consumer reporting agencies;

· the tax assessor’s office; and

· utilities, such as the electric or water company.

Professional organizations may be useful sources as well. For example, if you have learned from one of Edna Ball’s neighbors that she is a paralegal, you can check with state and local paralegal associations to see if they have current information on her. You might also check with federal, state, or local governmental agencies (discussed in the following section) to see if information contained in public records will be helpful in locating her.

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An investigation planinvestigation planA plan that lists each step involved in obtaining and verifying facts and information relevant to the legal problem being investigated.

is a step-by-step list of the tasks that you must complete to verify factual information you need to obtain relating to a legal problem. In the Baranski case, the steps in your investigation plan would include those summarized in Exhibit 11.6 and discussed next. Make sure your supervising attorney approves the investigation plan. Throughout the investigation, keep in touch with your supervising attorney about your progress.

Exhibit 11.6An Investigation Plan

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Contacting the Police Department

Contacting and Interviewing Witnesses

Obtaining Medical and Employment Records

Exhibit 11.7Authorization to Release Medical Records

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Contacting the National Weather Service

Obtaining Vehicle Title and Registration Records

Contacting the Insurance Company

Using a Professional Investigator’s Services

Chapter Contents

11-5cLocating Witnesses

Finding People

Other Information Sources

Other sources of information include:

· media reports (newspaper articles and television videos covering the event);

· court records (probate proceedings, lawsuits, and the like);

· deeds to property (usually located in the county courthouse);

· birth, marriage, and death certificates and voter-registration lists;

· the post office (at which a witness may have left a forwarding address);

· consumer reporting agencies;

· the tax assessor’s office; and

· utilities, such as the electric or water company.

Chapter Contents

11-5dAccessing Government Information

Records and files acquired and stored by government offices and agencies can be a key resource for the legal investigator. Public records are available at local government buildings or offices (such as the county courthouse), as mentioned above. You can also often find these records on the website of the agency that maintains them. Additionally, it is possible to obtain information from federal agencies, such as the Social Security Administration, and from state agencies, such as the state revenue department or the secretary of state’s office.

If you wish to obtain information from any government files or records, check with the specific agency or department to see what rules apply. The Developing Paralegal Skills feature below provides more tips on obtaining public information.

Developing Paralegal Skills

Accessing Government Information

Ellen Simmons works for Smith & Case, a law firm that handles environmental cases (see Chapter 19). Ellen is to request copies of documents from the Environmental Protection Agency (EPA). She needs to determine if the EPA has the waste-in/waste-out report that gives the total volume of hazardous waste at the site and lists the potentially responsible parties.

Tips for Working with Government Agencies

· Before you call the agency, review the file to familiarize yourself with the case, and go online to the agency website to search for as much background information as possible.

· Review the agency’s regulations to ascertain which documents the agency prepares in specific types of cases, such as Superfund cases.

· Make a list of the various documents.

· Determine in advance (from the list) which documents you will be requesting.

· Develop a list of alternatives to use in the event that the documents you request have not been prepared or are not available.

· Make reasonable requests from the agency.

As is true in all areas of law practice, developing good working relationships with agency staff members can result in getting more cooperation, more quickly, than might otherwise occur. Being organized and knowledgeable about document requests will produce a better response.

The Freedom of Information Act (FOIA) requires the federal government to disclose certain records to any person on request. A request that complies with the FOIA procedures need only contain a reasonable description of the information sought. The FOIA exempts some information from the disclosure requirement, including classified information, confidential material dealing with trade secrets, government personnel rules, and medical files. Requesting information through the FOIA is usually slow and should be used only when there is no other choice.

Chapter Contents

11-5eInvestigation and the Rules of Evidence

Because an investigation is conducted to obtain information and verify facts that may be introduced as evidence at trial, you should know what kind of evidence will be admissible in court before undertaking your investigation.

EvidenceEvidenceAnything that is used to prove the existence or nonexistence of a fact. is anything that is used to prove the existence or nonexistence of a fact. Whether evidence can be used in court is determined by the rules of evidencerules of evidenceRules governing the admissibility of evidence in trial courts. rules that explain what types of evidence are admissible and how to have evidence admitted. The Federal Rules of Evidence govern the admissibility of evidence in federal courts. State rules of evidence apply in state courts. (Many states have adopted evidence rules patterned on the federal rules.) You do not need to become an expert in evidentiary rules, but a basic knowledge of how evidence is classified and what types of evidence are admissible in court will greatly assist your investigative efforts. For you to know something is not enough. You must have admissible evidence to prove the fact in court.

Direct versus Circumstantial Evidence

Two types of evidence may be brought into court—direct evidence and circumstantial evidence. Direct evidenceDirect evidenceEvidence directly establishing the existence of a fact. is any evidence that, if believed, establishes the truth of the fact in question. Bullets found in the body of a shooting victim provide direct evidence of the type of gun that fired them. Circumstantial evidenceCircumstantial evidenceIndirect evidence offered to establish, by inference, the likelihood of a fact that is in question. is indirect evidence that, even if believed, does not establish the fact in question but the degree of likelihood of the fact. That is, circumstantial evidence can create an inference that a fact exists.

Suppose your firm’s client owns the type of gun that shot the bullets found in the victim’s body. This circumstantial evidence does not establish that the client shot the victim. Combined with other circumstantial evidence, however, it could help to convince a jury that the client committed the crime. For instance, if other circumstantial evidence indicates that your firm’s client had a motive for harming the victim, that the client was at the scene of the crime at the time the crime was committed, and had recently fired his gun, a jury might conclude that the client committed the crime even if there were no witnesses.

Relevance

Evidence will not be admitted in court unless it is relevant. Relevant evidenceRelevant evidenceEvidence tending to prove or disprove the fact in question. Only relevant evidence is admissible in court. is evidence that tends to prove or disprove the fact in question. For example, evidence that the gun belonging to your firm’s client was with another person when the victim was shot would be relevant, because it would tend to prove that the client did not shoot the victim.

Even relevant evidence may not be admitted in court if its probative (proving) value is substantially outweighed by other important considerations. For example, even though evidence is relevant, it may not be necessary—the fact at issue may have been sufficiently proved or disproved by previous evidence. In that situation, the introduction of further evidence would be a waste of time and would cause undue delay in the trial proceedings. Relevant evidence may also be excluded if it would tend to distract the jury from the main issues of the case, mislead the jury, or cause the jury to decide the issue on an emotional basis. Gruesome photos of a murder victim are sometimes excluded on this basis.

Authentication of Evidence

At trial, an attorney must lay the proper foundation for the introduction of certain evidence, such as documents, exhibits, and other objects, and must demonstrate to the court that the evidence is what the attorney claims it is. The process by which this is accomplished is referred to as authenticationauthenticationThe process of establishing the genuineness of an item that is to be introduced as evidence in a trial. The authentication requirement relates to relevance, because something offered in evidence becomes relevant to the case only if it is authentic, or genuine. As a legal investigator, make sure the evidence you obtain is not only relevant but also capable of being authenticated if introduced at trial.

Commonly, evidence is authenticated by the testimony of witnesses. For example, if an attorney wants to introduce an autopsy report as evidence in a case, she can have the report authenticated by the testimony of the medical examiner who signed it. Generally, an attorney must offer enough proof of authenticity to convince the court that the evidence is, in fact, what it seems to be.

The Federal Rules of Evidence provide for the self-authentication of specific types of evidence. In other words, certain documents or records need not be authenticated by testimony. Certified copies of public records, for example, are automatically deemed authentic. Other self-authenticating evidentiary documents include official publications (such as a report issued by the federal EPA), documents containing a notary public’s seal or the seal of a public official, and manufacturers’ trademarks.

Hearsay

When interviewing witnesses, keep in mind that the witness’s testimony in court must be based on the witness’s own knowledge, not hearsay. HearsayHearsayTestimony that is given in court by a witness who relates not what he or she knows personally but what another person said. Hearsay is generally not admissible as evidence. is testimony given in court by a witness who relates not what he knows personally but what another person said. Literally, it is what someone heard someone else say. Hearsay is generally not admissible in court when offered to prove the truth of the matter asserted.

Hearsay is generally not allowed because the person who made the out-of-court statements was not under oath. Also, the witness reporting the statement may have misunderstood what the person was saying. Furthermore, there is no opportunity to cross-examine the person who actually made the statements.

PERSONAL OBSERVATION. For example, a witness in the Baranski case cannot testify in court that she heard an observer say, “That van is going ninety miles per hour”—even if the other observer was a police officer. Such testimony would be inadmissible under the hearsay rule. The witness can only testify about what she personally observed regarding the accident. Of course, during the investigation, witnesses often tell you what other people said (and you should not discourage them from doing so). If you wish to use information obtained this way as evidence in court, however, you need to find an alternative method of proving it (such as by the testimony of the people who made the original statements).

EXCEPTIONS. The hearsay rule provides exceptions in specific circumstances, often for statements made in situations that indicate a high degree of reliability. For example, a witness is usually allowed to testify about what a dying person said concerning the cause or circumstances of his or her impending death. The courts have concluded that a dying person usually does not lie about who or what caused the death.

Similarly, if a person makes an excited statement at the time of a stressful or startling event (such as “Oh no! That woman just threw her baby out the window!”), a witness can usually testify as to that statement in court. If one of the parties to a lawsuit makes an out-of-court admission (for example, if defendant Peretto in the Baranski case admits to friends that he was driving too fast at the time of the accident), a witness’s testimony about what the party said may be admissible, although the rules on out-of-court admissions vary among jurisdictions. Exhibit 11.8 describes some of the traditional exceptions to the hearsay rule.

Exhibit 11.8

Some Exceptions to the Hearsay Rule

Present Sense Impression—A statement describing an event or condition made at the time the declarer perceived the event or condition or immediately thereafter [FRE 803(1)]. Example: “I smell smoke.”

Excited Utterance—A statement relating to a startling event or condition made while the declarer was under the stress or excitement caused by the startling event or condition [FRE 803(2)]. Example: “Oh no! The brakes aren’t working!”

State of Mind—A statement of the declarer’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health). Such statements are considered trustworthy because of their spontaneity [FRE 803(3)]. Example: “My leg is bleeding and hurts terribly.”

Recorded Recollection—A memorandum or record indicating a witness’s previous statements concerning a matter that the witness cannot now remember with sufficient accuracy to testify fully about the matter. If admitted in court, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party [FRE 803(5)]. Example: An employer’s memo to one of his or her employees in which the employer responds to the employee’s complaint about safety violations in the workplace.

Former Testimony—Testimony that was given at another hearing or deposition by a witness who is now unavailable, if the party against whom the testimony is now offered was a predecessor in interest and had an opportunity to examine the witness in court during the previous hearing or deposition [FRE 804(b)(1)]. Example: An employee’s testimony about his or her employer that was introduced at a trial brought by the employee’s co-worker against that employer for sexual harassment. The employer is now being sued by another employee for sexual harassment, and the employee who testified in the previous trial is out of the country. The employee’s testimony in the previous trial may be admissible.

Business Records—A document or compilation of data made in the course of a regularly conducted business activity, unless the source of the information or the method or circumstances of the document’s preparation indicate that it is not trustworthy as evidence. The source of information must be from a person with firsthand knowledge, although this person need not be the person who actually made the entry or created the document [FRE 803(6)]. Example: Financial statement of a business firm.

Dying Declarations—In a prosecution for homicide or in a civil proceeding, a statement made by a person who believes that his or her death is impending about the cause or circumstances of his or her impending death [FRE 804(b)(2)]. Example: Derek said just before he died, “Jethro stabbed me.”

Statement against Interest—A statement that was made by someone who is now unavailable and that was, at the time of its making, so far contrary to the declarer’s financial, legal, or other interests that a reasonable person in the declarer’s position would not have made the statement unless he or she believed it to be true [FRE 804(b)(3)]. Example: Sanchez says that Jackson, who is now missing, made the following statement to Sanchez just before leaving town: “I committed the perfect crime!”

Miscellaneous Exceptions—Miscellaneous exceptions include records of vital statistics [FRE 803(9)]; records of religious organizations [FRE 803(11)]; marriage, baptismal, or similar certificates [FRE 803(12)]; family records (including charts, engravings on rings, inscriptions on family portraits, and engravings on tombstones) [FRE 803(13)]; and statements offered as evidence of a material fact that are trustworthy because of the circumstances in which they were uttered [FRE 804(b)(5) and FRE 803(24)].

Federal Rules of Evidence.

Chapter Contents

11-5fSummarizing Your Results

The final step in any investigation is summarizing the results. Your investigation report should provide an overall summary of your findings, a summary of the facts and information gathered from each source that you investigated, and your conclusions and recommendations based on the information obtained.

Overall Summary

The overall summary should thoroughly describe all of the facts you have gathered. This should be written so that someone not familiar with the case could read it and become adequately informed about the case’s factual background.

Source-by-Source Summaries

Create a list of your information sources, including witnesses, and summarize the facts gleaned from each of these sources. Each “source section” should contain all information gathered from that source, including direct quotes from witnesses.

Each source section should also contain a subsection giving your comments on that particular source. You might comment on a witness’s demeanor, for example, or on whether the witness’s version of the facts was consistent or inconsistent with the versions of other witnesses. Your impressions of the witness’s competence or reliability could be noted. If the witness provided you with further leads to explore, this should also be included.

Conclusions and Recommendations

In the final section, you present your overall conclusions about the investigation, as well as suggestions that you have on the development of the case. Attorneys rely on their investigators’ impressions of witnesses and evaluations of investigative results because the investigators have firsthand knowledge of the sources. Your impression of a potentially important witness, for example, may help the attorney decide whether to arrange for a follow-up interview with the witness. Usually, the attorney will want to interview only the most promising witnesses, and your impressions and comments serve as a screening device. Based on your findings during the investigation, you might also suggest to the attorney what further information can be obtained during discovery, if necessary, and what additional research needs to be done.

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