chapter 7 seven interviews civ lit 2nd

Civil Litigation:Process and Procedures

Chapter SevenClient Interviews and Investigation

in Civil Litigation

2Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.

What Constitutes an Interview Typical paralegal/client contact

Screening Initial contact In-depth initial fact-gathering

Provides an early opportunity to assess the client How will they appear to a jury? Begin preparing the client for future

interviews




ImpliedAttorney/Client Relationship May result when a prospective

client divulges confidential information for the purpose of retaining the attorney

Extends to the paralegal, as the attorney’s agent

Not dependent on eventual representation




The Screening Interview Determine the referring source Must avoid collecting too much

confidential information until the attorney and client enter a representation agreement

Must collect enough to do a conflicts check and for the attorney to determine whether the firm will take the case




Written Representation Agreement Attorney determines there is a valid

claim and the firm can accept the client

The client understands the terms and retains the firm

The terms of representation are set out Scope of representation Fees

Non-representation should be set out in writing, too




Contingent Fee Agreements A written contract

Sets out the percentage of the judgment due to the attorney

Identifies the expenses & costs that will be owed, regardless of the outcome of the case

May address issues of collection, structured settlements, etc.

Signed by both parties




Case Organization One method includes analysis of

Cast of characters – who is involved, what role do they play?

Chronology – enter important events along a time-line, including conflicting versions

Issue list – legal claims and critical factual disputes

Question list – a running list of questions that arise during the analysis




Preparing for the Interview Review available materials,

understand the desired outcome Obtain relevant facts Instill the client with confidence

Prepare the environment, addressing Location – prevent distractions Attire & appearance Cultural issues




Interview Checklists A fail-safe mechanism, not a script Prevents accidental omission of

important information Provides the foundation for a more

detailed interview plan Available for different types of

litigation




Interview Setting Varies in response to the

interviewee Formal appropriate in some instances

– from a desk in an office Informal, in some cases, to put the

client or witness at ease Always maintaining a professional,

competent demeanor




Dress and Appearance First impressions count The “corporate culture” of your

firm will help determine your dress Is there a difference between “every

day” and “meeting with a client” attire? Is there a “casual” day? Does the client or witness have religious

or cultural issues, and can you increase his or her comfort level?




Gender Differences Avoid stereotyping Appreciate individual differences Consider the receiver’s attitudes about the

paralegal Man-to-man – may afford instant credibility Woman-to-woman – may afford credibility,

expect a more nurturing individual Paralegal man to woman – may expect him not

to really listen to her Paralegal woman to man – may expect

nurturing, be uncomfortable with aggression, or just ignore her




Ethnic Differences Avoid stereotyping Learn a little about greetings &

communication issues, specific to their cultural background

Be aware of body language, such as eye contact




Ethical Obligation A paralegal must

Disclose his or her status in any interview

Explain what a paralegal can & can’t do to those who are not familiar with the profession

Guard against UPL




Building a Relationship Take care of the interview details,

such as time & location, efficiently Appear professional Explain the reason for the interview,

and your role as a paralegal Appreciate the stress level of the

interviewee Read body language to determine the

comfort level




Listening Skills Focus on the answer to the question you

just asked, not the next question Adjust your position & tempo to the

interviewee’s responses Understand the type of witness you are

interviewing: friendly, hostile, expert, etc.

Listen in a nonjudgmental, impartial manner

Be alert for intentional misinformation (intended to either please or confuse you)




More Listening Skills Do not make assumptions about the

case – let the witness tell you what he or she thinks

Observe language difficulties, and adjust accordingly – ask for clarification if unsure

Empathize, while remaining professional Don’t interrupt or antagonize the

speaker – control any angry responses Don’t argue, even mentally




Question Modes Open-ended or narrative – allows

interviewees to tell their stories (“Describe the car.”)

Closed-ended – seeks a single detail (“What color was the car?”)

Leading – suggests the desired or expected answer (“The car was blue, wasn’t it?”)




Interview Questions Open-ended prevent cutting off

information that you have not anticipated, which may be vital to your case, and make good initial questions

Closed-ended are good follow-up questions, picking up details that may have been missed

Leading questions may taint the witness’s memory, and are best left to the attorney




Privileged Communications Evidentiary rule that protects some

types of information from being used at trial

Privileges may include Attorney/client Doctor/patient Priest/penitent Spousal communications during

marriage




Waiver and Exceptions The attorney/client privilege belongs to the

client, who may waive it Different rules exist permitting information

to be revealed in the interest of preventing a great harm

Applies to attorney agents, as well as attorneys

Is destroyed if a disinterested third party is present at the time and, with the client’s knowledge, is allowed to hear the information




Moral vs. Ethical Obligations Moral obligations are based on

one’s own conscience, or community standards of conduct (not law)

Ethical obligations are the responsibilities of the legal profession under that state’s professional conduct rules or code




Expert Witnesses Used to evaluate evidence for case

development Used to testify in court Gives opinion evidence based on a

set of facts or an examination of physical evidence

Qualified by their background, education, and/or experience




Expert Witness/Privilege Anything revealed to an expert

who is listed as a trial witness is discoverable

Other information given to experts, not called as witnesses, is not clearly protected, since they are their parties, not a part of the legal team, but may be found to be privileged in some instances




Deposing Expert Witnesses What opinion have you formed? What led you to that opinion? How & why did you do that & what didn’t

you do? What results did you get: how did they

affect your opinion? What assumptions did you make? Are there reliable authorities in this field,

& is this your current & accurate résumé?




Investigating Claims To determine whether to proceed in

a legal matter, the legal team should Gather all available, relevant

documents Interview client Research the law for the legal basis of

the claims; anticipate legal defenses Prepare an investigation plan,

identifying witnesses & evidence needed to support the claim




Obtain Official Reports Police accident or incident report Emergency medical services report Fire department call report Incident reports of safety violations

by federal, state or local authorities May be a means to determine

Time & place Names of witnesses Diagrams & photos




Fact Analysis – Field Investigation Verification of the location Description from different

perspectives Examine with an impartial, neutral

point of view – no familiarity Photographs, including satellite

photos Compare & contrast before & after




Tangible Evidence Physical objects must be preserved

Chain of custody Controlled samples, testing

Failure to preserve can result in spoliation, based on Degree of fault of the party who altered or

destroyed evidence Adverse affect on opposing party Sanctions designed to protect the injured

party’s rights, deter future spoliation




Timelines




Freedom of Information Act FOIA – a federal statute designed to make

government information available to the public (5 U.S.C. §552)

Exceptions include documents concerning Classified defense & foreign policy Personnel rules & practices, medical files Patent applications, trade secrets & tax

returns Law-enforcement investigations Financial institution records Some geological & geophysical information




FOIA Request Form




Locating Witnesses Directories

Standard telephone Cross-reference, or “criss-cross” Trade organization & and professional

group Educational institutions The web, via search engines or

professional site (e.g., Martindale.com)




Common Sense Analysis Jurors’ perspective – logical

timeline, common sense explanations are easy to grasp

Presenting a case that seems improbable but is nonetheless consistent with investigation findings requires more care

chapter 7 seven interviews civ lit 2nd

Documents

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