Interviewing & Investigation

1. Interviewing & Investigation Foundations of Investigating

2. Formal Discovery in Civil Litigation • KPIs: • procedural rules that govern formal discovery in a civil case • the kinds of information that are discoverable • various methods of formal discovery • order in which formal discovery ought to be conducted • role of the investigating paralegal in formal discovery • how to draft various kinds of documents and related motions • how to index or summarize a deposition

3. Event Giving Rise to the Suit Lawsuit is filed Trial or Settlement Formal Discovery Informal Discovery Comparing Formal and Informal Discovery

4. Advantages of Informal Investigation • Early investigation produces more information • Information located early is more reliable • Information sought informally is more easily obtained • Information sought informally is less expensive

5. Advantages of Informal Investigation • No opposing party is present for informal investigation • The first side to locate relevant information gains advantages in litigation • Prompt investigation enhances settlement prospects

6. Limits on Informal Discovery • The parameters of what is legal • The ethical rules that govern lawyers and those that work with them • The scope of authority given to the investigator by the client • The investigator’s imagination and industriousness

7. Objectives of Pre-filing Investigation • To determine if there are facts sufficient to state one or more causes of action • To determine provable damages • To determine if there are facts sufficient to assert a valid defense • To satisfy special pleading requirements • To identify all potential defendants

8. Objectives of Pre-filing Investigation • To determine the assets of identified defendants • To determine questions of personal jurisdiction • To determine questions of subject matter jurisdiction • To determine the proper venue for a case • To determine questions regarding governmental immunity

9. Formal Discovery in Civil Litigation • KPIs: • procedural rules that govern formal discovery in a civil case • the kinds of information that are discoverable • various methods of formal discovery • order in which formal discovery ought to be conducted • role of the investigating paralegal in formal discovery • how to draft various kinds of documents and related motions • how to index or summarize a deposition

10. Methods of Formal Discovery in a Civil Case • Depositions • Interrogatories • Requests for Production of Documents and Things • Requests for Physical or Mental Examinations • Request for Admissions

11. Identify and organize the topics to be addressed Use clear and concise language Be thorough Don’t be wordy Use subparts carefully Use definitions Use instructions with caution Avoid abusing discovery Review requests carefully for objections Answer only what is fairly asked Comply with all rules of procedure and local rules of court Drafting Guidelines for Discovery Documents

12. The Order of Discovery • Interrogatories and document requests • Depositions • Requests for physical or mental examination • Requests for admissions

13. Formal Discovery in Criminal Litigation • KPIs: • procedural rules that govern formal discovery in a criminal case • the kinds of information that are discoverable in criminal litigation • the role of pretrial hearings in discovery in a criminal case • the use of motions in a criminal case to aid in discovery • role of the paralegal in formal discovery in criminal cases

14. Means of Formal Discovery Available to the Defense: Criminal Litigation • Review of the criminal complaint • Initial appearance • Preliminary hearing • The information and the indictment • Bill of particulars • Rule 16 discovery • Identity of witnesses

15. Means of Formal Discovery Available to the Defense: Criminal Litigation • Statements of witnesses • Exculpatory material -- the Brady doctrine • Depositions • Motions as discovery devices • The Freedom of Information Act and The Privacy Act

16. Means of Formal Discovery Available to the Prosecution: Criminal Litigation • Initial appearance • Preliminary examination • Grand jury testimony • Rule 16 discovery • Statements of witnesses • Prior notice of affirmative defenses

17. Discovery of Electronic Evidence (e-discovery) • Over 50 billion e-mails are sent each day • Private persons, businesses, and government are creating and storing more documents electronically • 90% of documents world wide are created in digital form

18. Role of the Paralegal in Formal Criminal Discovery • Attendance at pretrial proceedings • Review and analysis of court filings • Drafting discovery documents and related motions • Familiarity with discovery procedures • Familiarity with forms • Reviewing documents, reports, and summaries • Assisting the client in responding to discovery requests

19. Rules of Evidence for the Investigator (Part 1) • KPIs: • difference between testimonial, real, documentary, and demonstrative evidence • first-hand vs. second-hand knowledge and direct vs. circumstantial evidence • laying a proper foundation for certain kinds of evidence • role of the burden of proof and the degree of proof required in civil and criminal cases • various kinds of privileged information

20. Means of Proof • Testimonial evidence: received from the sworn testimony of witnesses • Documentary evidence: received from properly admitted documents • Real or physical evidence: properly admitted objects • Demonstrative evidence: properly admitted charts, graphs, diagrams, computer simulations, etc.

21. Direct and Circumstantial Evidence • Direct evidence is evidence that, if believed, establishes a relevant fact without the need for any inference. • Circumstantial evidence is indirect evidence that requires an inference or conclusion to prove a relevant fact.

22. Types of Information • First-hand knowledge is something known to a person because they perceived it with one of their senses. • Second-hand knowledge is something known because someone else told them or they read it somewhere.

23. Areas Where Rules of Evidence Help Paralegal Investigators • Planning and carrying out effective informal investigations • Putting discovered information in admissible form • Drafting formal discovery requests and responses • Drafting affidavits or declarations for use in pretrial motions • Planning the evidence to be offered at trial • Assisting the lawyer at trial

24. Most Widely Recognized Privileges • In addition to the attorney-client privilege, other privileges include: • trial preparation materials • physician-patient privilege • psychotherapist-patient privilege • marital (spousal) privilege • spousal testimony privilege • privilege against self-incrimination

25. Rules of Evidence for the Investigator (Part 2) • KPIs: • basic rules of evidence and how they apply to interviewing and investigating work • the admissibility of evidence for alternative reasons

26. The Hearsay Rule Hearsay is defined by FRE 801(c ) as “a statement, other than the one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.”

27. Is a Statement Hearsay? • Ask yourself the following questions to determine whether testimony might run afoul of the hearsay rule: • Is it a statement? • Is it a statement made out of court? • Is it a statement offered to prove the truth of the matter asserted? • Is there a recognized exception for the statement?

28. Exceptions to the Hearsay Rule • Present sense impression • Excited utterance • Statements made for the purpose of medical diagnosis or treatment • Recorded recollection • Statements used to refresh memory • Business records

29. Exceptions to the Hearsay Rule • Public records • Former testimony • Statement against interest • Discretionary exceptions

30. Exclusions to the Hearsay Rule • Statement offered for non-hearsay purpose -- not to prove the truth of the statement • Admission by party opponent

31. Exceptions to the Ban on Character Evidence • Where the character is an essential element • The criminal accused • Other crimes, wrongs or acts • Reputation for truthfulness • Conviction of a felony or other crime involving dishonesty

32. End of Foundations of Investigating