Interviewing & Investigation LAW-123

1. Interviewing & InvestigationLAW-123 Introduction to Interviewing and Investigating

2. Investigation • Investigation is the process by which attorneys and their assistants gather relevant information from a variety of private and public sources in order to successfully represent their clients.

3. Interviewing • The ability to effectively interview clients, potential witnesses, and other persons who may have helpful information is a critical part of the investigation process.

4. Relationship BetweenLaw and Fact • Interviewing and Investigating are the means by which lawyers identify andgather facts that will control the law of the case. • Legal Research is the process by which lawyers find the law applicable to the legal issues in the case.

5. Factual Analysis • Acritical thinking skill • Three steps involved in process: • Comprehension of law and facts discovered • Evaluation – careful examination of facts for reliability • Application of relevant facts to legal issues

6. Lie Tell half-truths Are mistaken Guess Forget or misremember Make assumptions Jump to conclusions Allow prejudices to color facts Have only second or third hand knowledge Confuse their opinions with facts Are reluctant to tell what they know Perceive events and describe them differently than others Why Evaluation is Necessary Sometimes, Clients or Witnesses:

7. Determine if sources are competent, honest, reliable, and objective Filter out opinions, assumptions, and prejudices Distinguish between first and second or third hand information Verify information by independent corroboration Seek details and leads to other information Seek clarification of confusing or incomplete information Compare facts Look for contradictions and inconsistencies Look for gaps and seek to fill them Draw reasonable inferences but seek confirmation Resist the urge to jump to conclusions and seek hard evidence How to Evaluate Facts

8. Investigation in Civil Litigation • Purposes for Plaintiff are to determine: • If Client has a valid and timely cause of action • The relative strength of Client’s case • Any defenses to Client’s cause of action • Identity of Defendantsto Client’s cause of action and whether they are “judgment proof” • The likelihood of counterclaims against Client • The identity of potential witnesses • The existence and value of documentation and physical evidencerelevant to Client’s case

9. Investigation in Civil Litigation • Purposes for Defendant are to determine: • How to answer the complaint (i.e., admit or deny facts) and what motions are advisable • Whether factual or affirmative defenses are available • Whether a counterclaim against Plaintiff or cross-claim against third party exists • The relative strength of Defendant’s case • What alternative strategies may be advisable (e.g., settlement)

10. Investigation in Criminal Litigation • Purposes for Defendant are to determine: • Evaluate government’s charges against Client • Advise Client how to plead, and whether to defend or plea bargain • Prepare defense for trial

11. Investigation in Other Legal Representation • Purposes are to determine: • What options are available to Client based on facts • What the risks and benefits are for Client re: each option • Favorability to Client of one option over others • How to assemble information to accomplish the selected goal(s)

12. Related Skills and Areas of Knowledge • Substantive Law • E.g., Constitutional Law, Contracts, Agency, Torts, Criminal, Property • Essential in order to: • Understand reason and purposes for investigation in a particular case • Plan the investigation • Identify all sources of information

13. Related Skills and Areas of Knowledge • Legal Research and Writing • Must be able to locate and understand the law, and apply the facts to it • Rules of Evidence • Must know both what evidence to pursue, and what form it must be in to be admissible

14. Related Skills and Areas of Knowledge • Rules of Procedure • E.g., Civil Procedure, Criminal Procedure • Must know rules that govern the proceeding, and procedures for formal discovery • Legal Ethics • E.g., Rules of Professional Conduct • Must know and comply with the rules that govern the Attorney • Client confidentiality, conflicts of interest, unauthorized practice of law, parties represented by counsel, duty of competence, handling of client funds

15. Definition of Paralegal • A person who: • Is qualified by education, training, or work experience • Is employed or retained by a lawyer, law office, corporation, government agency, or other entity • Performs specifically delegated substantive legal work for which a lawyer is responsible

16. The Paralegal As Agent • As an Agent of the Attorney and a Subagent of the Client, the Paralegal’s employment has several ramifications: • The Paralegal’s actions may belegally bindingon the Attorney and Client • The Attorney may be liable for damages to others by the Paralegal • The Attorney may be sanctioned for actions of the Paralegal

17. Attorney Expectations of Paralegals • Willingness to take direction • Initiative to clarify assignments • Judgment • Discipline to keep Attorney informed • Ability to work under pressure • Communication and people skills • Objectivity • Thoroughness • Creativity • Interviewing and investigating skills

18. Structure of the Course • Basics of Communications Theory • Applying Communications Theory to a Three-Staged Interview Process • Rules of Evidence and Discovery • Sources of information • Developing and executing an Investigation Plan

19. End of Introduction to Interviewing and Investigating