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Chapter 7 seven interviews civ lit 2nd

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Chapter 7 seven interviews civ lit 2nd

  1. 1. Civil Litigation:Process and Procedures Chapter Seven Client Interviews and Investigation in Civil Litigation
  2. 2. 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 interviewsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 3. Implied Attorney/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 representationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 4. 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 caseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 5. 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, tooCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 6. 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 partiesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 7. 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 analysisCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 8. 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 issuesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 9. 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 litigationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 10. 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 demeanorCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 11. 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?Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 12. 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 herCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 13. Ethnic Differences  Avoid stereotyping  Learn a little about greetings & communication issues, specific to their cultural background  Be aware of body language, such as eye contactCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 14. 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 UPLCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 15. 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 levelCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 16. 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)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 17. 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 mentallyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 18. 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?”)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 19. 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 attorneyCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 20. 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 marriageCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 21. 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 informationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 22. 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 codeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 23. 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 experienceCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 24. 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 instancesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 25. 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?Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
  26. 26. 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 claimCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
  27. 27. 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 & photosCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 28. 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 & afterCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
  29. 29. 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 spoliationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
  30. 30. TimelinesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30
  31. 31. 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 informationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 31
  32. 32. FOIA Request FormCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 32
  33. 33. 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)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 33
  34. 34. 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 careCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 34

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