prentice hall ©2008 pearson education, inc. upper saddle river, nj 07458 the paralegal professional...

PRENTICE HALL ©2008 Pearson Education, Inc. Upper Saddle River, NJ 07458

The Paralegal Professional ESSENTIALS, 2/eBy Cheeseman and Goldman

Part II

Chapter 9: Interviewing and Investigation Skills

The Paralegal ProfessionalESSENTIALS, Second Edition



Interviews

Although an attorney must accept the client’s case, paralegals may conduct the first in-depth factual interview.

– Preliminary information-gathering prior to case acceptance is permitted (usually biographical information and basic facts).

– During the course of representation, the paralegal will also interview:

Clients (especially during discovery) Fact witnesses Expert witnesses, investigators Public records custodians, etc.



Screening Interviews

Limited contact, prior to accepting the case Care must be taken to limit potentially

privileged information until the relationship has been established by the attorney. – A paralegal cannot accept a client, but also has to

avoid an implied acceptance (UPL issues). Client may call in or present in person. Generally, minimal information is collected.

– Forwarded to the attorney– Can begin conflicts-checking



First Meeting

Attorney must lay the groundwork for establishing the paralegal/client relationship, especially regarding legal advice.

The initial interview may be free.– Privilege may be an issue.– Must avoid giving legal advice.– Used to determine the validity of the case and the “good

match” with the firm’s capabilities.– May result in accepting the case, referring it to another firm

or agency, perhaps pro bono (for the benefit of the public at low or no cost).



Implied Attorney/Client Relationship

The courts may find a relationship established if the client justifiably believes one has begun.

The prospective client may reveal potentially privileged information before:

– The representation agreement is completed– The conflicts check is performed

Conversations concerning representation just before the running of a statute of limitations can expose a firm to liability, even if no formal relationship is established.



Revealing Clients’ Identities

May not be revealed to outsiders May need to be revealed to avoid conflicts

– An employee needs to reveal that the opposing party was represented by a previous employer

May need to be “walled off” The firm might be disqualified



Preparing for the Interview

Determine desired outcome Recognize the relevant background or

cultural issues Preparing and scheduling will permit a more

relaxed, productive interview



Investigation Checklists

Will be modified to meet changing circumstances Begins with standard biographical information Reminds the interviewer of basic information

needed:– Account and policy numbers (estate planning, divorce)– Insurance policy information and medical history (personal

injury, medical malpractice, workers’ compensation)– Road conditions, automobile registration, insurance, and

repair history (auto accident)



Physical Surroundings

May prefer formal or informal Must consider

– Dress and appearance Appropriate to the client or witness Should appear professional, concerned Some firms prefer casual, non-intimidating styles

– Greetings (usually formal, unless there is a previous relationship)

– Location (usually the law office, but may be conducted in the field)



Communications in a Multicultural Society

Gender may affect communications. Cultural differences affect behavior, communications.

– Subtle, physical “messages,” such as posture, positioning, eye contact, manner of dress

– A different set of gender differences– Language use may differ

No group, such as European, Latino, African or Asian, is homogeneous, and each contains many subcultures.



Conducting the Interview

UPL prevention introductions are required. Need to maintain professional demeanor

when the subject is embarrassing or unpleasant to the interviewee.

Need to heed non-verbal cues to discomfort or avoidance.

Beginning with simple, biographical information may put the interviewee at ease.



Listening Skills

Cultural differences must be taken into account.

Who is the interviewee? Client? Witness?– Friendly/self-interested – Hostile/biased– Expert

Information must be taken non-judgmentally. Do not make assumptions or jump to

conclusions.



Listening Skills, cont.

Be patient with those who are not articulate. Try not to react to deliberate antagonizing,

and don’t antagonize the interviewee. Empathize with the interviewee. Don’t interrupt. Eliminate distractions. Don’t argue, even mentally.



Forms of Questions

Leading questions do not provide new information.– Suggest the desired answer– Can taint future testimony

Open-ended questions allow interviewees to answer with a narrative account, including the information they deem important and/or are willing to share.

– Good for obtaining descriptions (What did it look like?)– Can be clarified with follow-up closed-ended questions

(What color was it?) to fill gaps



Moral Considerations

A moral obligation is based on conscience, community moral standards, perceptions of “correct” or “good” behavior.

Ethical obligations are required by the professional conduct rules.

Representation may ethically require that a client be asked to do something that may offend some moral codes.



Privileged Communications

Evidence issues, not ethical ones Privilege belongs to the client, not the attorney Can be waived Encourages candid and complete communications Court makes the determination as to the existence of

privilege– Can force testimony or find the “hold-out” in contempt of

court



Expert Witnesses

Qualified to give opinions by:– Background/experience– Education/training

Review facts and evidence and present opinion testimony:– Scientific– Actuarial– Medical

Their credibility generally rests upon their credentials.



Investigating Claims

Begin with the legal basis of the claim. – In-take interview– Attorney assignment

Determine the elements of the claim.– Legal research– Attorney assignment– Office forms, checklists– Gather evidence and testimony

Witness statements Physical evidence (product samples, data) Demonstrative evidence (photos, charts)



Investigations

May be to support a claim, or to defend against one Official records may need to be obtained:

– Police reports– Emergency medical reports– Fire departments reports– Administrative agency reports

Various sources must be compared, and the facts analyzed for gaps, discrepancies, or contradictory information.



Investigations, cont.

Locations need to be “scouted” to determine the accuracy of various descriptions.

– Need to produce demonstrative evidence (maps, diagrams, photographs)

– Can use aerial, satellite photos (Earth Google©)– May need to prepare additional, follow-up questions of witnesses

for clarification Tangible evidence is direct evidence of the claim.

– Important to preserve the chain of custody– Important to avoid spoliation: altering/destroying evidence

Tests that harm the integrity of evidence may be conducted with court permission.



Timelines

Establish the sequence of events leading up to and following the claim

Determine differences in accounts by different parties, witnesses



FOIA

Can be used to obtain information gathered by the government, subject to exceptions (see Chapt. 8, slide 18).

Request should be made in writing, identifying the information sought.– By letter– By agency form



Locating Witnesses

Directories Telephone directories Criss-cross directories (can start with

address or phone number) Commercial or industrial directories Internet directories Internet searches “People-finder” paid services



Trial Preparations

Assess the ability of witnesses to present testimony.– Sympathetic/disagreeable– Truthful/sneaky– Knowledgeable/ignorant– Likeable/unpleasant

Document management– Tracking, handling, coding, summarizing,

indexing, bookmarking, examining



Trial Notebook

Different sections for activities, parties, witnesses or element of proof

May contain: – Attorney’s questions– Opening statement/closing argument notes– Legal memos in anticipation of issues raised

during trial– Documents/evidence– Jury notes



Case Management Software

Central repository for case information, available to every member of the legal team.

Documents are prepared in electronic format. Hardcopy documents can be scanned . Provides:

– Time and cost tracking– Calendaring– Conflict checking– Contact management– Document tracking, indexing, bookmarking, coding



Important Information

Database contact information for clients Central calendar with schedules for every

member of the legal team, appointments, personal deadlines

Courthouse contacts, particularly for clerks of court

Attorney peculiarities, preferences Judge peculiarities, preferences, court rules



Important Information, cont.

Essential forms (courts, agencies, in-house) Brief and memo banks for starting places in

legal research FAQs for clients, perhaps in brochure form Private computer information, preserving the

confidentiality, but permitting authorized access in case of emergency

Vendor and supplier records and contact information



Paralegal Professional: Unit 9 Assignment

Sources of Law:Statutory, Administrative, Constitutional and Case LawProfessor Emily Ryan



Format of the Paper

You should have a header titled “Memorandum”.

You should have single spaced the “to”, “from”, “re” and “date” lines.

To: Melinda Johnson, Senior Partner From: Student’s Name, Student RE: Sources of Law Memorandum Date: Date Submitted to Professor Ryan



Format (Continued)

The body of the paper should be double spaced.

Each type of law and example should be addressed in a different paragraph.

CITATIONS MUST BE USED to show your source of information.

APA Citation Format is required.



Introductory Paragraph

Give a short introductory paragraph of what sources of law means and what sources you will address in the paper.



For each type of law:

Define it.

Elaborate on it.

Give an example of a it.

Use appropriate APA citations.



Summary Paragraph

Give a short summary paragraph to wrap up your memorandum.



QUESTIONS?

• “Ask the Prof” inside your course.

• E-mail me at [email protected]

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• Reminder no week 10 seminar