Factfinder

Successful litigation starts with the proper gathering of information.

Litigation outcomes are usually decided not by legal interpretations but according to which party’s version of disputed events the factfinder—that is, the judge or the jury—accepts as true.

Facts

Facts are the collective pieces of information explaining your client’s version of what happened.

For example, facts may consist of what people said, did, or heard regarding the particular incident.

There are two ways of ‘‘getting the facts.’’ You can obtain facts informally before filing suit and you can get them through formal discovery after suit is filed.

Advantages of Informal Discovery

First, information is power, and the party that has a better grasp of the favorable and unfavorable facts is in a stronger position to accurately evaluate the case.

Second, information obtained early on, particularly from witnesses, is more likely to be accurate and complete.

Third, information sought before the action is formalized is more likely to be obtained, since a lawsuit often makes people cautious or uncooperative.

Advantages of Informal Discovery

Fourth, information obtained before suit has been filed is less expensive to acquire. Formal discovery is the most expensive way to get information.

Fifth, CCP §128.7(b) provides that by presenting to the court any pleading or similar paper, the attorney is certifying that, after ‘‘inquiry reasonable under the circumstances,’’ the document is not being presented for an improper or frivolous purpose and that the plaintiff’s allegations or the defendant’s denials are backed by evidentiary support.

Finally, you can get information informally without the opposing parties participating, or even being aware that you are conducting an investigation.

Cause of Action

Your job as a litigation paralegal is to obtain enough admissible evidence to prove your client’s claims and to disprove the other side’s claims.

If you are representing the plaintiff, enough facts must be gathered to state in the complaint a cause of action, sometimes called a claim for relief.

A Cause of Action is a theory of recovery that entitles the plaintiff to recover against the defendant.

Four Major Components of a Litigation Plan

Elements of claims

Sources of Proof

Informal Fact Investigation

Formal Discovery

Negligence

A cause of action in which the plaintiff must allege a duty of care by one party to another was breached and that was the cause of plaintiff’s damages

Breach of Contract

A cause of action in which the plaintiff alleges a contract breached by the defendant caused damages to the plaintiff. Also, the plaintiff must allege that he performed under the contract and therefore is excused from further performing

Basic Sources for Facts

The client

Exhibits

Witnesses

Experts

The opposing party

Basic Sources for Informal Investigations

The client

Exhibits

Witnesses

Experts

Elements of a Litigation Chart

Client Interviews

Client interviewing has two components: what information to get and how to get it.

What to get will be determined by your litigation chart.

How to get it is based on interviewing techniques that must be fully understood in order to get vital information from the client.

Topics to Discuss

The usual topics you will need to discuss with the client during the initial interview include the following:  Liability, damages, client background, parties, defenses and counterclaims, statutes of limitations, witnesses, records, physical evidence, other law firms, client goals, and next steps

Recording the Interview

Obtain a written, signed statement

Use a court reporter

Make a tape recording, with the witness’ consent

Take notes during the interview

Make notes after the interview

Sample Record of Documents

Exhibits

Tangible items of evidence presented at trial.

Physical Evidence

Tangible personal property that may be used as trial exhibits.

Physical evidence, such as vehicles, machinery, and consumer products, if not already in the possession of police, other investigative agencies, or the client, must be obtained and preserved for possible use at trial.

This includes not only locating the evidence, but also keeping it in the same condition and establishing the chain of custody—that is, who has had custody of the evidence at all times.

Subpoena

Court order compelling a nonparty to appear or produce documents or other tangible items

Records

You should obtain all available documents and records from the client.

Obtain everything the client has because once suit is filed the opposing party will be able to discover from the client anything that is relevant and not privileged.

If important documents and records are in the hands of third persons, see if those persons will voluntarily turn them over or provide copies.

Public records are usually available on request. A public record is one made by public officers in the course of performing their duties. Documents such as police reports, accident investigations, and personnel records of city and state employees may be obtained by simply making a proper request to the appropriate public agency.

Witness Interviews

After you have interviewed the client and obtained the available exhibits, the next stage of your informal fact investigation is interviewing witnesses.

Here, a great deal of flexibility is possible, and it is critical to plan ahead.

Paralegals are capable of locating many witnesses. The client frequently knows the important ones. Records, such as business records and accident reports, will usually identify others.

Purposes of the Interview

Learn what witness knows and doesn’t know

Get specific, admissible facts

Get admissions

Get information that might be used to discredit the witness

Get leads to other witnesses and information

Record interview or get written statement

Order for Witness Interviews

A frequently followed order for witness interviews is the following:

–    1. Witness background

–    2. Story in witness’ own words

–    3. Detailed chronological story

–    4. Questions focused on the theory of the case

Expert Interviews

Wrongful death, medical malpractice, product liability, major negligence, and commercial cases almost always use expert witnesses at trial.

The plaintiff’s case will probably require expert testimony to establish a prima facie case on liability and causation and to make out a solid case on damages.

Prima Facie Case

A case in which each element in the plaintiff’s claim can be proven

Computerized Fact Gathering

Use of the Internet has become a significant way to gather information in litigation matters, oftentimes at no cost.

Whether you want to conduct basic legal research on a specific topic or find out more information about an area, product, or even a company that is involved in the litigation, a good place to start is by using the Internet to gather information.