informal fact gathering & investigation 2 nd class session legl 261
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Informal Fact Gathering & Investigation
2nd Class Session
LEGL 261
Chapter Objectives
How to structure a factual investigation Where to obtain facts to prove your client's
case How to interview clients When and how to gather documents that
may be used as evidence Where to locate witnesses How to use the internet to gather facts.
Structuring Fact Investigations
Facts consist of what people heard, said, or did regarding an incident.
Two ways of "getting the facts" informal before suit formal discovery
Fact Investigations
In litigation the facts and the law are intertwined.
The facts can make or break a case. Facts are applied to the law to make a
case.
Causes of Action
A cause of action is the theory of recovery that entitles the plaintiff to recover damages or equitable remedies against the defendant.
Examples: Negligence Fraud Breach of Contract
Causes of Action
How do I find the elements of causes of action
Law books (Witkin, Summary of California Law)
Jury Instructions Case law Statutes
Litigation Chart
A Litigation Chart can help to structure your fact investigation and identify the major parts of a litigation plan:
Elements of claims Sources of proof Informal fact investigation Formal discovery
The Elements of CofA
“Cause of Action”: The “wrong” Example: Civil Assault
Intent To cause harmful or offensive contact reasonable belief about to be touched in a
harmful [or an offensive] manner or was threatened to touch …
Imminent and capable No consent Harm, and substantial factor in causing harm
California Civil Jury Instructions
1301. Assault—Essential Factual Elements [Name of plaintiff] claims that [name of defendant] assaulted [him/ her]. To
establish this claim, [name of plaintiff] must prove all of the following: [1. That [name of defendant] acted, intending to cause harmful [or offensive]
contact; 2. That [name of plaintiff] reasonably believed that [he/she] was about to be
touched in a harmful [or an offensive] manner;] [or] [1. That [name of defendant] threatened to touch [name of plaintiff] in a harmful [or
an offensive] manner; 2. That it reasonably appeared to [name of plaintiff] that [name of defendant] was
about to carry out the threat;] 3. That [name of plaintiff] did not consent to [name of defendant]’s conduct; 4. That [name of plaintiff] was harmed; and 5. That [name of defendant]’s conduct was a substantial factor in causing [name of
plaintiff]’s harm. [A touching is offensive if it offends a reasonable sense of personal dignity.] [Words alone do not amount to an assault.]
Battery—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] committed a battery. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [touched [name of plaintiff]] [or] [caused [name of plaintiff] to be touched] with the intent to harm or offend [him/her];
2. That [name of plaintiff] did not consent to the touching; and 3. That [name of plaintiff] was harmed [or offended] by [name
of defendant]’s conduct; [and] [4. That a reasonable person in [name of plaintiff]’s situation
would have been offended by the touching.]
California Civil Jury Instructions (CACI)1300
CofA: Negligence
Duty Breach of Duty Harm proximately caused by breach of
duty Resulting in injury
(Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496].)
Case Study: Palsgraf
Long Island Rail Road station. A passenger carrying a package, while hurrying to catch and board a moving train, appeared to two of the railroad's (Defendant's) employees to be falling. The employees were guards, one of whom was located on the car, the other of whom was located on the platform. The guard on the car attempted to pull the passenger into the car and the guard on the platform attempted to push him into the car from behind.
The guards' efforts to aid the passenger caused the passenger to drop the package he was holding onto the rails. Unbeknownst to the guards, the package, which was approximately 15 inches long and wrapped in newspaper, contained fireworks, and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform (although later accounts suggest that a panicking bystander may have upset the scale), which injured Mrs. Helen Palsgraf (Plaintiff).
Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee. The trial court and the intermediate appeals court found for Palsgraf (Plaintiff) by verdict from a jury, and Long Island Rail Road appealed the judgment.
It should be noted that Mrs. Palsgraf's injuries were not physical; she claimed to be suffering from a "nervous disorder" as a consequence of the incident. http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.
Dominoes? Foreseeable
Element of Foreseeablity: It began with a single row boat…
Negligence Chart
Elements Sources Formal Informal
Duty Defendant Interrogs Police rpt
Breach Witnesses
Police
Depos Police report
Causation Plaintiff depo of dr. plaintiff
Damages Doctor plaintiff
subpena Meds plaintiff
Criminal Elements?
Elements of Burglary Offense Trespass Breaking Entry Dwelling Nighttime Intent Under the common law, an intent to commit a felony at
the time of breaking and entering into the dwelling was an essential element of burglary. Since Larceny was a felony at common law, an intent to commit a larceny would suffice. Statutes vary from one jurisdiction to another. An intent to commit a felony is no longer required for all grades of the offense. In some states an intent to commit any crime will suffice.
Elements: Contract
Offer Acceptance Consideration Form Legality Capacity
Sources of Facts
The Five Main Sources for Facts: The client Exhibits Witnesses Experts The opposing parties
Informal Investigations
Four sources for informal investigations
The client Exhibits Witnesses Experts
Client Interviews
Just take down the facts; do not give legal advice.
Try to get full disclosure of the facts. Some clients will try to color or hide the facts because: May be embarrassed to reveal some facts; May try to say what he thinks the paralegal
wants to hear; May feel you will judge him.
Remind client to reveal the whole truth.
Preparation for Interview
Have client bring all paper work Have client fill out a New Client
Form Have an interview form
Initial Client Interview
Offer the client something to drink Talk to the client informally; ask him about
himself Let the client know what's going to happen
during the interview; Have the client tell the story of what
happened to him Get a detailed chronological history of the
events; if possible get dates
Initial Client Interview
Tell the client you may attempt to verify certain facts with an other source.
Ask client what he/she believes the other side will say;
Facts bearing on liability must be developed fully. Details are critical.
Obtain information on damages and sources of insurance;
Initial Client Interview
Get the client's personal background information
Find out the names of all parties involved
Do not make any commitments about taking the case until you speak with the attorney
Evaluating The Case
Are there any cross-claims? What defenses will the other side
have? What the statutes of limitations for
each of the causes of action List all possible witnesses
Evaluating The Case
Determine all records and documents pertinent to the case
What physical evidence is there? Has the client spoken to other law
firms? What does the client want? Do periodic interviews by phone or in
person
Evidence
Two types of evidence Testimony Physical evidence
Getting The Evidence
Identify all exhibits The scene Physical evidence Records and documents
Interviewing Witnesses
Try to interview each witness, favorable or not
Decide the order in which to interview them Locate those witnesses for whom you do not
have a number or address. If you cannot find the person on your own, you may have to hire an investigator.
Interviewing Witnesses
Set up the interview (in person is best) Make a list of the questions you need
answered before calling. At the interview, make the witness feel
as comfortable as possible. Be friendly and open.
Ask the witness if you can record his answers or get a written statement. Pin the witness down to details.
Structuring Witness Interviews
Witness background Story in witness' own words Detailed chronology Questions focused on the
theory of the case.
Evaluate The Witness
Write a short memo to the file or attorney evaluating the witness by appearance, verbal skills, non-verbal communication, credibility, etc.
Expert Witnesses
Many cases need expert witnesses to help establish liability or prove damages. Consulting experts Testifying Experts
Venue
The county in which the facts are alleged to have occurred and in which the trial will be held.
Venue is the legally proper place where a particular case should be filed or handled. Every state has rules determining the proper venue for different types of lawsuits. For example, the venue for a paternity suit might be the county where the mother or the man alleged to be the father lives.
The venue is the county from which the jury are to come, who are to try the issue.
The pleadings support a venue.
The First Documents & Letters
Retainer Agreement Letter to client (in/out) Letter to opposing party Letter to evidence sources (medical?) Request for police (or official) reports Waivers, if needed (HIPAA?)
Retainer
No retainer, no service Decline letters are important Notice of waiting for retainer?
Client Contact Letter
Thank them Build confidence and trust Inform them Get any needed docs or info Form a record of representation
Letter to Opposing Party
If represented, do not send to defendant!
Inform Request Intimidate?
Demand Letter
If case is ready May not need to litigate Get sense of opposing party’s positions
Don’t give away too much
What to put in? What to leave out?
Litigation Technology
Communication Data Storage Organization Case Management Dates and Deadlines Billing
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