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Unformatted text preview: M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 325 PA R T III Paralegal Skills The aspiring paralegal professional must develop a set of skills to allow them to understand and work in a supporting role as part of the legal team in the law office, the court, the administrative agency, and in the alternative dispute resolution working environment. Excellent verbal and written skills are crucial for paralegals who will be interviewing clients and witnesses and the general public. Paralegals must develop an ability to think critically and analytically when performing legal research and in writing briefs, memorandums of the law, and general correspondence. Today’s paralegal must be familiar with the use of technology to conduct legal and factual research using a digital library and Internet research services, as well as how to use traditional print sources of information. Part III covers the basic skills needed for a paralegal professional to be successful in the job. Chapter 9 Interviewing and Investigation Skills Chapter 10 Traditional and Computerized Legal Research Chapter 11 Legal Writing and Critical Legal Thinking M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 326 CHAPTER 9 Interviewing and Investigation Skills DIGITAL RESOURCES Chapter 9 Digital Resources at www.pearsonhighered.com/goldman Video Case Studies: UPL Issue: Working with a Witness UPL Issue: Interviewing a Client Zealous Representation Issue: When You Are Asked to Lie Chapter Summary • Web Links • Court Opinions • Glossary • Comprehension Quizzes Technology Resources M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 327 LEARNING OBJECTIVES “ It is the spirit and not the form of law that keeps justice alive. ” Earl Warren After studying this chapter, you should be able to: 1. Explain the potential issues involved in a screening interview. 2. Describe the issues in preparing for and conducting an interview. 3. Explain the steps and process of conducting an investigation. 4. List and describe sources for obtaining information. 5. Explain the function of the trial notebook and its relationship to case management. Paralegals at Work Sara had been working for only a few weeks as a paralegal intern for a small, boutique litigation law firm. Mrs. Weiser, one of the two paralegals supporting the two trial attorneys, told Sara about her long-planned Alaskan cruise that she would be taking with her husband for their 25th anniversary. The reality of the situation started to set in when Sara was advised that the cruise would start from Anchorage the next day and Mrs. Weiser was scheduled to leave within the hour to catch a plane. Sara’s concerns heightened when she and Mrs. Weiser reviewed the office calendar and it became obvious that Sara would be alone in the office. The attorneys and the other full-time paralegal were involved in a major medical malpractice case in another state for at least the next two weeks. Clearly, Sara would be in charge of the office, answering the phone and taking care of anyone who came in. Somewhat troubling would be the lack of any contact with Mrs. Weiser for the duration of the cruise, or contact with the other paralegal or attorneys during the trial day. The instructions left no doubt that Sara would be busy when she was told: “Now remember—we advertise on TV, and Mr. Elliott expects us to screen potential clients without bothering him with loser cases. I’ve left a couple of files for you to work on while I’m gone. The Morales case just came in. It’s an accident case that happened a few years ago, and you need to get her in for an initial interview—get all the necessary facts and see what else we have to do to move it along and either settle it or start suit. Oh, by the way, you do speak Spanish, don’t you? Mrs. Morales is from Puerto Rico. 327 M09_GOLD0000_00_SE_CH09.QXD 328 12/4/09 11:32 PM Page 328 PA R T I I I Paralegal Skills “The LaCorte case is on the trial list for next month. We don’t have an expert yet who can substantiate our theory of the case. See what you can find. Oh, and you’d better get that case organized so they can start trial immediately in case the current trial lasts longer than the expected three weeks. All the material is in piles or in boxes in Mr. Martin’s office. Prepare a trial notebook, or you can try that new case management software program we just got that is supposed to make life easier. I’m sure, with your computer skills, that you can get it up and running and use it to get the case ready for trial.” Consider the issues involved in this scenario as you read the chapter. INTRODUCTION FOR THE PARALEGAL Communication skills are at the heart of paralegals’ ability to conduct successful interviews and investigations. The paralegal must be prepared to be the first point of contact with the client. In some practices, clients are interviewed first by the supervising attorney and then referred to the paralegal for a detailed factual interview. In other practices, the paralegal is the first one to meet with the client and conduct the initial interview before referring the client to the supervising attorney. The paralegal must be able to interview clients, fact witnesses, expert witnesses, investigators, and others, including public records custodians who may have access to information necessary for the preparation of a case. The skill of the interviewer or investigator can determine the accuracy and completeness of the information obtained— and ultimately the outcome of the case. The impressions created and the relationship developed with a new client may be the deciding factor in whether the client stays with the firm or seeks other counsel. Professional relationships developed with public officials, public custodians of records, hospital records librarians, police investigators, and similar independent investigators can make the paralegal’s job much easier and ultimately benefit the client. Interviews Screening interview Limited first contact with a prospective new client. Any contact that a paralegal has with a client, or prospective client, constitutes an interview. It may involve limited contact, such as a screening interview, or an in-depth initial fact-gathering interview. In each case, the paralegal usually is the first point of contact with the client for the firm. The impression the paralegal makes is the impression the firm makes. As someone once said, we have only one opportunity to make a good first impression. The initial contact with a client is what is sometimes called a screening interview. This usually begins with an initial telephone call to the firm, although a person may appear at the reception desk, looking for an attorney and wanting to determine if the firm is interested in taking the case, and usually what it will cost. Also, paralegals frequently make the initial contact with potential witnesses. Again this may be a telephone call to set up a meeting or a telephone interview. The initial meeting with potential witnesses may be in the office or in the field at the witness’s home or place of business. The initial contact with a potential witness, just as with a potential client, may set the tone for the interview and the willingness of the person to cooperate. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 329 C H A P T E R 9 Interviewing and Investigation Skills 329 Screening Interview Many clients come to a law firm or lawyer from a referral source, such as a current or former client. This source of clients acts as a potential screening. The individual probably has been told by the referral source something about the nature of the practice, the kind of work being done for the referring person, and the perceived reputation or ability of the lawyer or firm. Other potential clients find the firm’s name and phone number in the telephone book, on a website listing of attorneys, or from another law firm advertisement or promotional piece. Finally, some people simply appear at the office door and ask for an appointment or basic information about the firm’s ability or interest in taking a case. In smaller offices the paralegal is the one who often takes these calls, doubling as receptionist–phone operator. The initial contact is filled with potential landmines. If the paralegal solicits too much information or the prospective client volunteers too much information, an implied attorney–client relationship may be created. If too little information is obtained, the attorney will not have enough information to decide if he or she wants to talk to the potential client. Therefore, the paralegal or receptionist has to decide how much information to take and how much information to give. First Meeting At the very least, it is prudent for the paralegal to advise the potential client that paralegals are not lawyers, and that only a lawyer can give legal advice. Also, anything said to the paralegal may not be subject to the attorney–client privilege. The prospective client may want a quick answer to the question, “Do I have a case?” The answer requires a legal analysis that only the attorney can make. The attorney–employer probably does not want to be bothered with most such early contacts but also does not want to lose a good case. Should the paralegal give advice or have this person speak with a lawyer? Most of these potential problems can be avoided by having a policy or strategy in place. Most offices have a policy on the fee for an initial interview. Many offer a no-cost initial interview to determine the validity of a case and any potential conflict of interests that might require the office to decline a case. In some cases, a nominal fee is charged. This may be a flat rate or an hourly rate. In many jurisdictions, referrals from the local lawyer referral office or legal aid office are charged at a token fee, sometimes as little as $5, or in indigent cases, no fee as part of the local pro bono program. The paralegal must ask the firm’s policy before attempting to give and receive information from potential clients. Implied attorney—client relationship Implied attorney–client relationship may result when a prospective client divulges confidential information during a consultation with an attorney for the purpose of retaining the attorney, even if actual employment does not result. Attorney–client privilege A client’s right to have anything told to a lawyer while seeking legal advice, kept confidential in most instances. Implied Attorney–Client Relationship If too much information is taken, the potential client may think he or she now has a lawyer. The courts have ruled on the side of the prospective client, holding that an implied attorney–client relationship exists. In this “implied” relationship, the client is entitled to expect the same degree of confidentiality under the attorney–client privilege. In this situation, a conflict of interest may result if the firm is already representing another party in the same matter, which would result in disqualification of the attorney or the establishment of an ethical wall to prevent access to information by members of the legal team with a conflict. One of the biggest potential areas of potential malpractice is to miss a statute of limitations on a client’s case. The statute of limitations is a time period within which a case must be filed with the court or the right to use the court for resolution of the case is lost. The statute of limitations is based on statute, and each jurisdiction has the power to set its own statute of limitations for each type of case. For example, in many states the time limit for filing a tort action arising out of an automobile action is two years, and a contract action six years, but in some states the suit must be filed in as little as 30 days. To a client seeking a new lawyer for an appeal, the timeframe may not be important. But to the lawyer, it is potentially critical to prevent malpractice, especially Conflict of interest Representation of another with conflicting rights. Ethical wall A artificial barrier preventing anyone not authorized who may have a conflict of interest from accessing client information. Statute of limitations A time limit within which a case must be brought or lose the right to seek redress in court. M09_GOLD0000_00_SE_CH09.QXD 330 12/4/09 11:32 PM Page 330 PA R T I I I Paralegal Skills Web Exploration Contrast and compare the Missouri Rule 4-1.18 at http://www.courts .mo.gov/courts/ClerkHandbooks P2RulesOnly.nsf with the ABA Rule 1.18 at www.abanet.org/cpr and the rule in your jurisdiction. IMPLIED ATTORNEY–CLIENT RELATIONSHIP SIDEBAR Implied attorney–client relationship may result when a prospective client divulges confidential information during a consultation with an attorney for the purpose of retaining the attorney, even if actual employment does not result. Pro-Hand Servs. Trust v. Monthei, 49 P.3d 56, 59 (Mont.2002). The attorney–client privilege applies to all confidential communications made to an attorney during preliminary discussions of the prospective professional employment, as well as those made during the course of any professional relationship resulting from such discussions. Hooser v. Superior Court, 101 Cal. Rptr. 2d 341, 346 (Ct. App. 2000). ETHICAL PERSPECTIVE Missouri Bar—Rules of Professional Conduct RULE 4-1.18: DUTIES TO PROSPECTIVE CLIENT (a) A person who discusses with a lawyer the possibility of forming a client–lawyer relationship with respect to a matter is a prospective client. (b) Even when no client–lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 4-1.9 would permit with respect to information of a former client. (c) A lawyer subject to Rule 4-1.18(b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in Rule 4-1.18(d). If a lawyer is disqualified from representation under Rule 4-1.18(c), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in Rule 4-1.18(d). (d) When the lawyer has received disqualifying information as defined in Rule 4-1.18(c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and the disqualified lawyer is timely screened from any participation in the matter. when the timeframe is short, such as when the court has allowed a time limit for an appeal of 10 to 45 days, after which time the court order is not appealable barring special relief by the court. The timing of the statute of limitations deadline always must be considered when taking the initial call or during the first contact with the potential client. If a court holds that an implied attorney–client relationship exists after the statute of limitations has run out (expired), the failure of the attorney to have taken action may be held to be malpractice and subject the lawyer to pay what would have been recovered if the case had gone forward and a recovery obtained. As the first point of potential client contact, the paralegal must be prepared to take appropriate action and refer the matter to the supervising attorney. Some calls are not from potential clients but, rather, from those attempting to get information about the representation of other clients. This is not unusual. Particularly in family law cases, a party may call as if seeking representation but in reality is trying to find out if the other party has retained the firm. Preparing for the Interview The first step in preparing for an interview or conducting an investigation is to understand the outcome desired. One of the desired outcomes in an initial interview with a new client is to instill confidence in the firm and its personnel. The fundamentally desired outcome of any interview is to obtain all of the relevant facts for the case that has been assigned. Understanding the goals of the interview or investigation, the background or cultural issues of the individual, and the nature of the situation will help in structuring a successful interview. Occasionally an interview has to be conducted without time for preparation, such as when the paralegal is asked to fill in for someone else at the last moment. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 331 C H A P T E R 9 Interviewing and Investigation Skills IN THE WORDS OF THE COURT Identity of Clients HOOSER V. SUPERIOR COURT OF SAN DIEGO COUNTY 84 CAL.APP.4TH 997 (2000) 101 CAL.RPTR.2D 341. . . . the identity of an attorney’s clients is sensitive personal information that implicates the clients’ rights of privacy. “[E]very person [has the right] to freely confer with and confide in his attorney in an atmosphere of trust and serenity. . . .” (Willis v. Superior Court (1980) 112 Cal.App.3d 277, 293.) Clients routinely exercise their right to consult with counsel, seeking to obtain advice on a host of matters that they reasonably expect to remain private. A spouse who consults a divorce attorney may not want his or her spouse or other family members to know that he or she is considering divorce. Similarly, an employee who is concerned about conduct in his workplace, an entrepreneur planning a new business endeavor, an individual with questions about the criminal or tax consequences of his or her acts, or a family member who desires to rewrite a will may consult an attorney with the expectation that the consultation itself, as well as the matters discussed therein, will remain confidential until such time as the consultation is disclosed to third parties, through the filing of a lawsuit, the open representation of the client in dealing with third parties or in some other manner. Upon such public disclosure of the attorney-client relationship, the client’s privacy concerns regarding the fact of the consultation evaporate and there is no longer a basis for preventing the attorney from identifying the client. (See Satterlee v. Bliss (1869) 36 Cal. 489, 501.) However, until such a public disclosure occurs, the client’s identity is itself a matter of privacy, subject to the protection against involuntary disclosure through compelled discovery against the attorney. Investigation Checklists The investigation checklist (Exhibit 9.1) should not be viewed as a static document. The checklist should start with a listing of all of the parties involved who should be interviewed, including initial fact witnesses. As additional parties and witnesses are interviewed, more people may have to be added to the list. Exhibit 9.2 is a witness information form. Investigation of locations and physical evidence may result in the need to examine other locations and evidence. Initial interviews also may result in the need to add one or more expert witnesses to the investigation checklist. A checklist can be a valuable tool to be certain that all the information required for a certain type of case or other legal matter is obtained during the initial interview. The same checklist offers a good foundation for developing a more detailed interview plan when there is time for preparation. Physical surroundings, clothing, and appearance are important in preparing for interviews and investigations. They merit your attention. Physical Surroundings The physical surroundings in the interview location can set the tone for the interview. Depending upon the purpose of the interview and the person being interviewed, the paralegal may wish to create either a formal or an informal environment. You probably can remember a situation in which someone interviewed you from across a desk. Didn’t you feel a certain formality and possibly subservience to the interviewer? Contrast that situation with sitting in an informal setting with a low coffee table and living room-style chairs. This setting gives the meeting a more personal tone. Putting a client at ease may be easier in the informal setting, whereas dealing with opposing counsel might be better handled in the formal, “across the desk” meeting. 331 M09_GOLD0000_00_SE_CH09.QXD 332 12/4/09 11:32 PM Page 332 PA R T I I I Paralegal Skills Exhibit 9.1 Investigation checklist for auto accident INVESTIGATION CHECKLIST Client name Phone (hm) (wk) (cell) Current address Prior address(es) Date of birth Place of birth Social Security No. VEHICLE CLIENT OPERATING/PASSENGER Owner and type of motor vehicle Insurance Co. Policy number Insurance company contact Phone Date of incident Time of day Weather conditions County Municipality (wk) (cell) Location of incident City, State Opposing party Address Phone (hm) Owner and type of motor vehicle Insurance Co. Policy number FACT WITNESSES Name Address Name Address Name Address Name of ambulance Name of hospital Police report issued Copy ordered Photographs of scene taken Name of treating physicians EXPERT WITNESSES Name Address Name Address Summary of cause of action Attach detailed accident/incident description, accident reports and diagrams. In most cases, the paralegal will want to create the impression of a competent professional, although in some situations, creating a more casual and less professional impression may be beneficial. Some witnesses are more cooperative and helpful when they feel as if they are the ones in charge and are helping the paraprofessional. Dress and Appearance Remember the old saying, “First impressions count”? The impression a paralegal makes when walking into the room for the initial interview may set the stage for the entire relationship with the client or witness. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 333 C H A P T E R 9 Interviewing and Investigation Skills Exhibit 9.2 Witness information form Clothing, posture, and manner of greeting create the first impression. Clothing sends a nonverbal message about the person and the firm or business. The impression a person makes upon walking into the room can enhance or destroy credibility. In the practice of law, or in a corporate law department, the unexpected can become the 333 M09_GOLD0000_00_SE_CH09.QXD 334 12/4/09 11:32 PM Page 334 PA R T I I I Paralegal Skills Web Exploration Check religious holiday dates at http://www.interfaithcalendar.org/. norm. Many attorneys, male and female alike, keep a “going-to-court suit” in the office just in case they need to have a more professional appearance at a moment’s notice. When the new client comes in, they can change quickly while the receptionist or secretary buys them time to change to the “power” outfit. A client may be offended by a paralegal’s “casual Friday” appearance, believing that the paralegal is not taking the matter seriously. The working paralegal, however, usually doesn’t have time to change when the unexpected arises, often being the one to “buy time” for the attorney. Therefore, paralegals always must be prepared to make a good impression and tailor their appearance appropriately as the situation warrants. In the case of field interviews, a casual appearance may be preferred to put the potential witness at ease. In the office, suits with jackets are appropriate for men and women. In the field, removing the jacket may give the impression of less formality. Communication Skills in a Multicultural Society* Those with whom paralegals communicate can be addressed in many ways. Clients, witnesses, and others with whom the paralegal comes in contact should never be stereotyped. At the same time, paralegals should be aware of the gender, religious, and ethic sensitivities of people. Paralegals’ skills as interviewers depend on their ability to appreciate the differences in how and why individuals act and react differently. They must not assume that everyone in each category believes and acts the same and have to be sensitive to issues that may cause a person not to communicate as might have been anticipated from first impressions of them. We will point out some general differences in the way men and women communicate, followed by some cultural background considerations. Gender Differences A man, in comparison to a woman, is more likely to: ■ ■ ■ ■ ■ ■ ■ ■ have been socialized to perform more aggressively and boast of his successes; have learned from childhood games that winning is desirable; be motivated by competition; view conflict as impersonal, a necessary part of working relationships; be impressed by power, ability, and achievement; hear only the literal words and miss the underlying emotion; not express his true feelings through facial expressions; have a more direct communication style. A woman is more likely to: ■ ■ ■ ■ ■ ■ ■ ■ have been socialized to work cooperatively and to be modest about her success; have learned from childhood games to compromise and collaborate, and continue to be motivated by affiliation; compete primarily with herself—with her own expectations of what she should be able to accomplish; take conflict personally; be impressed by personal disclosure and professional courage; have the ability to focus on several projects at the same time; be proficient at decoding nonverbal meanings and likely to display her feelings through facial expression and body language; have an indirect style, except with other women of equal rank. * This section on communication skills is adapted from Crosstalk: Communicating in a Multicultural Workplace, by Sherron Kenton and Deborah Valentine, 1997. Reprinted with permission of the Authors. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 335 C H A P T E R 9 Interviewing and Investigation Skills Considering the receiver’s attitudes about the paralegal: ■ ■ ■ ■ Man-to-man: He may afford the paralegal instant credibility based on the same gender. Woman-to-woman: She may expect the paralegal to be friendly, nurturing, and concerned and may afford the paralegal instant credibility based on same-gender assumptions. Paralegal man-to-woman. She may expect that the paralegal will not really listen to her. Paralegal woman-to-man: He may expect the paralegal to be friendly and nurturing, even passive-dependent. Any aggressive behavior or deviation from his expectation could cause him discomfort and confusion, or produce negative responses. He may simply disregard the female paralegal. Cultural Sensitivity The culturally sensitive person is aware of the reasons for differences in the way people behave, based on religious and ethnic background and belief system. As the cultural makeup of the United States has become more diverse, the need for cultural awareness and sensitivity in the legal and paralegal professions has grown. Just as men and women are said to be different in some ways, so are Europeans, Asians, Latinos, and Africans who have not fully assimilated into the culture of the country. Interviewing a Latino male, for example, may require a different approach than interviewing an Asian female. Even subtleties of eye contact can affect an interview. Whereas Americans view eye contact as a sign of sincerity, some Asian cultures view this as aggressive. In developing communication skills, paralegals must become sensitive to how they are perceived and learn to fashion their approach to maximize accuracy of communication. The effectiveness of paralegals also is influenced by how well they “read” the cultural backgrounds of those with whom they interact. This involves manner of speaking, dressing, and acting, and whether one is a man or a woman in that culture. What is heard may not be what was intended. What is perceived may not be what the other person perceives, because of cultural differences that affect the interpretation of words and body language. We will briefly highlight some general characteristics of four cultural groups. European background. Generally, the countries of Western Europe, including Scandinavia, comprise the group of European background. This group is extraordinarily large and complex, which limits attempts to make cultural generalities. In terms of gender differences, men and women with roots in the European culture may have different initial reactions to the paralegal and attitudes about the topic. Male and female listeners alike tend to perceive men as having more credibility than women of equal rank, experience, and training. Men tend to be more credible to other men, and women may be more credible to other women. Now consider the cultural implications of graphic pictures of physical injuries from car crashes. These photos are acceptable in the United States, but Germans tend to dislike the sight of blood and the British are likely to be offended by violence. According to Kenton and Valentine, if the paralegal appears to be European– American, receivers of communication may be concerned that the paralegal will: ■ ■ ■ ■ reject their opinions; take advantage of them or hold them back; consider them different in a negative way; deny them equal opportunities. Latino background. Collectively, Latin America encompasses 51 countries generally considered to be those south of the U.S. border: Mexico and the countries of Central America, South America, and the Caribbean islands. With so vast an area, many differences 335 M09_GOLD0000_00_SE_CH09.QXD 336 12/4/09 11:32 PM Page 336 PA R T I I I Paralegal Skills can be expected from country to country and even from city to city. The languages, too, are not the same. Portuguese is spoken in Brazil, and the Spanish that is spoken in South America differs from the Spanish spoken in Puerto Rico. The Latino–American population has moved closer to becoming the largest minority group in the United States. According to Kenton and Valentine, individuals with roots in the Latino culture tend to: ■ ■ ■ ■ ■ value family and loyalty to family; honor nationalism; exhibit a strong sense of honor; have a fatalistic view of the world; express passion in speech, manner, and deed. Asian background. More than 30 countries can be considered Asian—among them, China, Malaysia, Japan, the Philippines, India, and Korea. They, too, demonstrate vast differences from culture to culture. Some generalizations may be made, however. Asian cultures generally consider that being direct and to the point is rude, and relationships are considered top priority. The Japanese, for example, tend to prefer an indirect style of communication. In communicating with people who have an Asian background, then, it might be best to begin with pleasantries about the weather, sports, or inquire about the well-being of the individual and his or her family. Roots in the African culture. African Americans represent the largest ethnic group in the United States. A distinction should be made between African Americans of recent immigration with stronger cultural ties to the African culture and African Americans with long family ties within the United States whose cultural roots are American. According to Kenton and Valentine, some of the African core beliefs and cultural values that may influence attitudes and behavior are: ■ ■ ■ a holistic worldview; emotion and expressiveness; a keen sense of justice or fairness. Conducting the Interview In the first meeting, the paralegal must make clear that he or she is a paralegal and not an attorney. During the first few minutes of the interview, paralegals must build a relationship with the interviewees, explain the reason for the interview, and eliminate any barriers that would prevent obtaining the necessary information. Sometimes the interviewees seem to be fully cooperative when in fact they are not cooperating. Or the subject matter may be embarrassing, or they may have a fear of authority figures, or they might be uncomfortable using certain terms necessary to describe the situation. Effective interviewers learn the verbal and nonverbal cues that help them understand the reasons for interviewees’ reluctance to answer questions. In some situations the solution is first to ask easy questions, such as the person’s name and address. Once interviewees start speaking, they have less trouble answering well thought-out questions that build logically on the previous information. This is not always the case, though. In times of great stress, clients have been known to read the name from a nameplate in the office and state it as their own name! The interviewer must be careful to avoid embarrassing the interviewee and have prepared questions that can be answered easily and thereby help the person gain composure, such as, “My records show that you live at 123 South Main Street. Is that correct?” Or “How do you spell your name?” Listening Skills A good interviewer must master the skill of listening. Most of us hear the words being said but may not be listening to what is being said. Instead of concentrating on what is being said, listeners may be more concerned with the next question they want to M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 337 C H A P T E R 9 Interviewing and Investigation Skills 337 C HECKLIST Listening Skills Empathize with the person, and try to put yourself in his or her place to help you see the point. Don’t interrupt; allow time for the person to say what he or she is trying to say. Leave your emotions behind, and control your anger. Emotions will prevent you from listening well. Get rid of distractions. Don’t argue mentally. Don’t antagonize the speaker. This could cause someone to conceal important ideas, emotions, and attitudes. Avoid jumping to conclusions. This can get you into trouble. For example, don’t assume that the speaker is using the words in the same way that you are interpreting them. If you are unsure, ask for clarification. © Student Counseling Service, Texas A&M University. ask, or emotionally influenced by the speaker’s message, or distracted by the speaker’s physical behavior. Interviewing clients and witnesses requires listening to what is being said in the context of the speaker’s cultural makeup. It also requires an understanding of the type of witness—friendly, hostile, or expert—and the witnesses’ bias toward the client or the type of case for which they are being interviewed. Fact witnesses may not want to get involved, or be hostile witnesses, saying what they either think you want to hear or what will move their agenda along. Fact witnesses in criminal matters involving members of different races or religions may not be as concerned for the truth as they are for “someone paying” for committing the crime. Bias and cultural identity may influence what is said. The professional interviewer must listen to what is really being said in a nonjudgmental impartial manner. When listening, the paralegal must focus on what is said and not how it is said. Some people are not articulate, and the facts may be lost if a person doesn’t listen carefully. Others may try to shock or put off the paralegal by buzz words designed to get a reaction. In sports, this is referred to as “trash talk”—saying things to get the listener to react emotionally and lose concentration. Good listeners avoid distractions. They do not allow themselves to lose focus because of environmental distractions such as noise or activity in the area of the interview, or a speaker’s annoying physical habits, such as tapping the fingers or legs, or speech impediments, such as stuttering. Think about how hard it is to concentrate on what is being said in a large classroom. Good listeners focus on the message and block out distractions. Further, good interviewers do not make assumptions about the facts of the case. They listen with an open mind. Making assumptions about people or facts can lead to attempts to make the facts fit the interviewer’s preconceived notions. Sometimes the facts are not what they first seem to be. Look at the number of people released from jail after DNA evidence proves they did not do the crime everyone assumed they committed. Fact witnesses may have been interviewed and been given a version of the incident that the DNA does not prove to be correct, and the person is innocent. Web Exploration For more information on listening skills see the Texas A&M Website at http://www .scs.tamu.edu/selfhelp/elibrary/ listening_skills.asp. Leading Questions Leading questions are those that suggest the desired answer. In conducting a crossexamination, lawyers in trial frequently use leading questions to force the witness to answer in a desired manner. An obvious example is, “Have you stopped kicking your dog?” On direct examination, an attorney might ask a more direct and neutral question: “Have you ever kicked your dog?” Leading questions do not lead to open-ended answers but are directed toward a desired answer: “You ran the red light, didn’t you?” Leading question A question which suggests the answer. M09_GOLD0000_00_SE_CH09.QXD 338 12/4/09 11:32 PM Page 338 PA R T I I I Paralegal Skills Open-Ended Questions Open-ended question A question that usually does not have a yes or no answer. Narrative opportunity A question that allows the giving of a full explanation. Open-ended questions are designed to give interviewees an opportunity to tell their story without the limitation of yes-or-no answers. Open-ended questions create a narrative opportunity for the witness. For example: “Tell me about your life”; “Tell me about your life since the accident.” In fact interviews, the witness should receive the opportunity for open-ended narrative answers. Asking a question to solicit an answer that you desire may cut off information that is essential to your case. For example, you may want to know whether your client was at the scene of an accident, and therefore you ask the witness, “Did you see my client at the scene of the accident?” The answer to this question may be “yes” or “no.” A better question would be, “Who was present at the scene of the accident?” This kind of question may lead to additional information on additional witnesses you may want to interview. Similarly, the question, “How fast were the cars going prior to the impact?” is much better than, “Were the cars speeding before the impact?” In this context, the term “speeding” may be interpreted as exceeding the speed limit instead of going too fast for the conditions. With the witness’s statements from the interview in hand at the time of trial, the trial attorney might appropriately ask a leading question such as, “My client wasn’t present at the scene of the accident, was she?” Or, “Isn’t it true that the defendant was speeding before the impact?” With knowledge of the prior statement, there should be no surprise in the answer at trial. If there is, the prior statement can be used to impeach the credibility of the witness, if desired, as part of the trial strategy. At times, the interviewer may want to focus clients or witnesses by asking questions that give them a perspective of time or place, such as, “What did you observe at noon on Saturday?” or, “Tell me what happened on September 11, 2001.” The tragedy of that day will haunt the memories of Americans and most of the rest of the world, so little stimulus will be needed to elicit where they were and what they observed. This is true of most traumatic events in people’s lives—the loss of a loved one, the birth of a child, or a serious accident in which they were injured. Other days and times tend to blur and have to be brought to the consciousness of the witness by questions such as, “Let’s think back to August 19, 2001” and, “What happened to you that day?” Discovery Limitations Discovery is the more formal term for the pretrial process of learning everything relevant about the case. This includes the investigation phase where basic information is gathered without the formality of statements signed under oath, such as written interrogatories, or before a court reporter authorized to administer oaths such as in a formal deposition. The scope of the inquiry is only limited generally to that which is relevant. Evidence is relevant if the fact is logically connected and tends to prove or disprove a fact in issue. Under the federal rules of evidence: Rule 26 (b) Discovery Scope and Limits. (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 339 C H A P T E R 9 Interviewing and Investigation Skills 339 For the investigator or interviewer, the rule then is: Information may be sought, even if it is not admissible, as long as it is relevant and may lead to relevant information that will be admissible at trial. This includes information that may be used in trial to show bias, lack of credibility, and challenges to the qualifications of an expert. Moral Versus Ethical Considerations At times in the investigation of a case, it is necessary to consider the difference between a moral consideration and an ethical consideration. A moral obligation is one based on one’s own conscience or a person’s perceived rules of correct conduct, generally in the person’s own community. Some communities, for instance, may consider it to be morally improper to ask someone to give information about another person. An ethical obligation, for members of the legal team including those acting on behalf of a supervising attorney, are the responsibilities of the legal profession under the ABA Model Rules of Professional Conduct, including thoroughness in representing a client. Is it ethically improper to ask someone to tell the truth surrounding the facts of a case that may lead to a neighbor, relative, or friend being subjected to liability for his or her actions? For the paralegal and the legal team, the primary ethical obligation is the duty to the client. Some members of the legal team, for example, may be offended to ask a mother to testify against a child. This is a moral issue for the mother, in which the results may cause financial hardship or ruin upon awarding a verdict for causing injury as the result of negligent conduct, but ethics may require this course of conduct for the paralegal. Moral obligation An obligation based on one’s own conscience. Ethical obligation A minimum standard of conduct usually within one’s profession. Privileged Communication Certain forms of communication are considered privileged and not usable at trial unless the privilege is waived. Forms of privileged communication are: 1. 2. 3. 4. Attorney–client communications Doctor–patient communications Priest–penitent communications Spousal communications during marriage Privileged communication A communication that the person has a right to be kept confidential based on the relationship with the other part such as attorney and client. Each of these privileges can be waived but the waiver must come from the client, the patient, the penitent, or the spouse making the statement with the belief that it is privileged. Changes in some of the rules of ethics, and by statute, may permit certain otherwise privileged communications to be revealed to prevent harm or injury to another. The spouse, the priest, or the doctor may have a moral issue in revealing what was communicated. When the paralegal is acting on behalf of the attorney, communications between a client and the paralegal have the same privilege as those between the client and the attorney. Information gathered from the client as part of representation of ETHICAL PERSPECTIVE New Hampshire Rules of Professional Conduct RULE 1.6. CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. The disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (B). Web Exploration Contrast and compare the New Hampshire Rule at http://www .courts.state.NH.US/supreme/ orders/20072507.pdf with the ABA Model Rules at www.abanet.org/cpr and the rule in your jurisdiction. M09_GOLD0000_00_SE_CH09.QXD 340 12/4/09 11:32 PM Page 340 PA R T I I I Paralegal Skills the client and necessary for rendering competent legal advice is privileged. The paralegal, therefore, is in the same position as the attorney, the doctor, the priest, or the spouse to whom the confidential information has been communicated. Each must carefully guard the confidential information and not inadvertently or intentionally reveal the information. In some cases, such as when another person’s life may be in danger, these people may be compelled by a court to testify even when they believe it is a violation of their moral duty to another person from whom they have received information. Expert Witnesses Expert witness A person qualified by education or experience to render an opinion based on a set of facts. Expert witnesses are individuals whose background, education, and experience are such that courts recognize them as qualified to give opinions based on a set of facts. The expert witness may be a doctor certified by a board of medical experts or a scientist or engineer specializing in an area of science such as flammability of fabrics. The report of these experts may be advice based on the facts of a potential case to determine whether there is sufficient evidence to believe that a wrong has occurred or malpractice committed. Without this report, the lawyers may be obligated to advise clients that they have no actionable cause of action. There is no clear rule on whether what is revealed to an expert in the preparation of a case is protected as part of the attorney–client privilege in the same manner as that revealed to a member of the trial team, including other attorneys, paralegals, and secretarial staff working on the case with the primary trial attorney. Almost certainly, anything revealed to an expert who is listed as an expert witness on the list of witnesses to be called at trial is discoverable. Some law firms retain an expert to advise them but do not use that expert to testify. The advice and information provided by these experts to help in the preparation IN THE WORDS OF THE COURT Federal Rules of Civil Procedure 26 F.R.C.P. 26(b)(4) (4) Trial Preparation: Experts (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided. (B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 341 C H A P T E R 9 Interviewing and Investigation Skills 341 for trial may come under the privilege. Although the privilege is the client’s, the paralegal and others on the legal team must be careful not to divulge privileged or confidential material without authorization. The expert retained for background trial advice must have as much confidence in the legal team as the legal team has in the expert’s advice and integrity. Some experts fear that the legal team will give them only selected information. With the limited information provided, they might give an expert opinion that is not what they would have given if they had received the complete set of facts. Exhibit 9.3 indicates factors to be considered in arranging for an expert witness. Investigating Claims The legal team must gather all of the relevant information about a cause of action before making a recommendation to a client to file a lawsuit or respond to a claim of wrongdoing. In most cases, before the first interview with the client is conducted, the paralegal has some indication of the area of law or the nature of the claim. It may be from a telephone interview when the client calls for an appointment, or from the referral from the supervising attorney to the paralegal to conduct the interview and investigation. If paralegals specialize in certain areas of law, they are likely to understand the underlying elements of the claims or rights the client wishes to assert. Those in general practice and those entering a new area have to understand the rules of law as they apply to that issue. For example, in a product liability case, understanding traditional, or commonlaw, of negligence is not enough. One also must understand the law of strict liability for product defect cases as found in the Restatement of the Law Third, Torts: Product Liability. Where negligence requires a breach of duty, strict liability is without fault in cases where the doctrine applies. An interview conducted strictly considering negligence as the basis for a legal action could improperly result in the client’s being advised that he or she does not have a claim when, under the no-fault strict liability concept for defective products, an action might exist. The first step is to determine the legal basis of a client’s claim. With an understanding of the legal basis of the claim and the applicable law, an investigative plan can be prepared to obtain the necessary witness statements, locate physical evidence, and obtain photographs, reports, and other evidence for use in preparation for and at trial. Where a claim of negligence is to be made, photographic evidence may be essential in demonstrating the nature of the hazard. For example, when a client has injured himself or herself as the result of a fall in a store, photographs showing the hazardous condition should be obtained as quickly as possible. In the case of strict liability involving a product defect that caused injury or loss, preservation of the defective product or photographic documentation of the defect becomes essential as a matter of proof. Knowing what elements of the action must be proven dictates what evidence must be located in the form of witnesses, photographs, and physical evidence. Knowing the elements of the claim will ensure that the proper questions are asked in the interview, which then will dictate the necessary investigation steps. One of the most useful tools in the gathering of information about a case is the digital camera. Digital photographs may be shared on computer networks or by Internet transfer to other members of the legal team, clients, and possible witnesses. It also is useful to take pictures of potential witnesses so other members of the legal team may recognize them later at the time of depositions and trial. If the photographs are going to be used at trial, it should be kept in mind that the photographer may be called to authenticate them. Web Exploration For more information in the changes in the revised Restatement of the Law Third, visit the American Law Institute http://www.ali.org/ ali/promo6081.htm. Strict liability Liability without fault. Restatement of the Law Third, Torts A legal treatise with suggested rules of laws relating to torts. M09_GOLD0000_00_SE_CH09.QXD 342 12/4/09 11:32 PM Page 342 PA R T I I I Paralegal Skills Exhibit 9.3 Expert witness form EXPERT WITNESS CHECKLIST BACKGROUND Full name Date of birth Business address Business telephone number Business fax number Business email address Business website Locations of prior offices Home address Home telephone number EDUCATION Schools attended Dates of attendance Degrees or honors awarded Continuing education courses WORK HISTORY Place of employment Dates of employment Job description Reasons for leaving Specific area of expertise Published articles and books Professional affiliations Professional magazines subscribed to Licenses and jurisdictions Litigations or disciplinary action PRIOR LEGAL EXPERIENCE Ratio of plaintiff/defense cases Prior clients including date (plaintiff or defendant) Types of investigations with dates Deposition testimony given with dates Court testimony with dates Legal references AVAILABILITY Vacation plans and dates Potential meeting dates In the deposition, verify the accuracy and currency of the expert's professional information, including all resume and curriculum vitae items. Verify the opinions are those of the expert and, if based on the work of others, who these others are and what other experts' writings were consulted. It is important to have on the record the assumptions upon which the expert has formed the opinion and the steps followed in reaching the opinion. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 343 C H A P T E R 9 Interviewing and Investigation Skills 343 A Defense Perspective Most people quite naturally think of a lawsuit from the plaintiff’s perspective. Most people think in terms of the violation of rights and resulting injury. In a perfect world, only legitimate actions would be filed and the law would provide a perfect remedy for all wrongs. But not every plaintiff is in the right, and some have been known to file frivolous or even fraudulent lawsuits. The balance in the American legal system is achieved by a vigorous defense on behalf of the defendant. A plaintiff may claim, for example, that she slipped and was injured as a result of the negligence of a storeowner. The defendant storeowner might be innocent of any wrongdoing or breach of any duty. It is well to remember that for every plaintiff there is a defendant, and for each party there is a law firm, an attorney, and a paralegal. Obtaining Official Reports Most incidents giving rise to litigation have associated official reports. In the negligence action, it may be a police accident or incident report, emergency medical services report, fire department call report, or incident reports of safety violations by federal, state, or local authorities. These reports are filed in a central depository as public records. A useful starting point is to obtain any official reports associated with the case. These reports frequently indicate time, place, and the names of fact witnesses. In some cases, detailed diagrams or photographs may accompany the reports. Exhibit 9.4 is an example of a police accident report form. Fact Analysis Analyzing the facts starts with interviewing the clients and their recitation of the time, place, circumstances, and other people involved as participants or witnesses. Exhibit 9.5 is a sample client interview form. A complete analysis usually requires further field investigation of the location, the object involved, such as an automobile, and interviews of the parties and witnesses. One person’s perception may not be reality. A client’s recollection and description of the physical surroundings may not be proven by the investigator’s visit to the location. What one person describes as a narrow, congested walkway may actually be a standard-width open sidewalk. The ultimate trier of fact will be the jury, a panel of arbitrators, or a judge acting as the trier of fact. Therefore, analysis of the facts must be sufficient to justify the position taken and the presentation made in pursuing a client’s claim or its defense in arbitration or in trial. Locations Careful analysis of a claim includes verification of the physical aspects of the actual location where the cause of action occurred. Ask any group of people to describe a location, and you’re likely to get as many different descriptions as there are people in the group. How the person viewed the location, from the south, from the north, east, or west, may influence their description. Or the driver’s view from behind the wheel of a large tractor-trailer might be different from the view from behind the wheel of a small sports car. Investigation of a case should involve a trip to the location where the incident occurred. The trier of fact will be relying upon the plaintiff’s and defendant’s counsels to describe in their presentation the characteristics of the physical location. They also will be looking at the location from an impartial, neutral point of view, usually without prior familiarity with the location. The diagrams usually presented at trial are those of an aerial view with its sterile, one-dimensional presentation. Photographs from the points of view of all the participants can make the difference in understanding the duties and responsibilities of the litigants. Unlike diagrams of the location, these photographs more typically will be from the point of view of the plaintiff, defendant, or witness at ground level, or from behind the wheel of a vehicle, or looking out of a building window. Arbitration A form of ADR in which the parties choose an impartial third party to hear and decide the dispute. M09_GOLD0000_00_SE_CH09.QXD 344 12/4/09 11:32 PM Page 344 PA R T I I I Paralegal Skills Exhibit 9.4 Sample police accident report form M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 345 C H A P T E R 9 Interviewing and Investigation Skills Exhibit 9.4 Sample police accident report form (continued) Source: Pennsylvania Department of Transporatation, Bureau of Highway Safety and Traffic Engineering. Used with permission. 345 M09_GOLD0000_00_SE_CH09.QXD 346 12/4/09 11:32 PM Page 346 PA R T I I I Paralegal Skills Exhibit 9.5 Initial client interview form CLIENT INTERVIEW CHECKLIST CLIENT PERSONAL INFORMATION Name Address City State Zip Phone (hm) (wk) (cell) How long at this address Date of birth Place of birth Social Security No. Prior address City State Zip Dates at this address Employer: Job description Marital status Maiden name Spouse’s name Date of birth Child’s name Date of birth Child’s name Date of birth Child’s name Date of birth CASE INFORMATION Case referred by Case type: Appeal Municipal Business Real Estate Corporate Tax Estate Trust Litigation Other Opposing party(ies) Opposing party Address Opposing attorney Address Date of incident Statute of limitation date Summary of facts Web Exploration Find your home on Google Earth at http://earth.google.com. Satellite photos are available of locations around the world. Earth Google™ offers a Web access to images that may be modified to add desired descriptions such as street names, points of interest, including lodgings, restaurants, schools, churches, and many others by the click of the computer mouse. Images from before a loss such as Hurricane Katrina combined with images taken after the devastation may be helpful in submitting claims for damages. Tangible Evidence Tangible evidence consists of the physical objects that may have caused the injury. These may include items as small as a giveaway toy from a fast-food restaurant swallowed by a M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 347 C H A P T E R 9 Interviewing and Investigation Skills 2-year-old, to a bottle that exploded, to a large automobile whose brakes failed or whose seatbelts snapped. In some cases, the tangible evidence is essential to proving negligence or an element of strict liability in tort. Much has been written about the effects of the plaintiffs’ and defendants’ failure to preserve critical evidence of this type. In some cases, failure to preserve the evidence has resulted in loss of the case by the plaintiff, and in other cases by the defendant. It is important to understand the local rules with regard to spoliation of evidence and its effect on a cause of action. In determining the proper penalty for spoliation of evidence, courts are most likely to consider [Schroeder v. Department of Transportation, 551 Pa. 243, 710 A.2d 23, 26 (1998)]: 1. The degree of fault of the party who altered or destroyed the evidence. 2. The degree of prejudice suffered by the opposing party. 3. The availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. Following a Timeline Causes of action should be viewed from the events leading up to the incident to the events and occurrences following the incident. (See Exhibit 9.6 for a comparison of conflicting accounts.) Few things in life that give rise to a potential claim occur in a vacuum. Usually some facts lead up to the incident and others follow the incident. The question may be, “Given the time in which the parties allege this happened, could this really have happened?” For example, could the parties have driven the 30 miles in Exhibit 9.6 Sample timeline using LexisNexis CaseSoft TimeMap Timeline created using TimeMap, from Decision Quest, CaseSoft (www.casesoft.com). Copyright LexisNexis® CaseSoft. Spoliation of evidence Destruction of evidence. 347 M09_GOLD0000_00_SE_CH09.QXD 348 12/4/09 11:32 PM Page 348 PA R T I I I Paralegal Skills Web Exploration The CPSC FOIA Request form can be completed online at http:// xapps.cpsc.gov/FOIA/pages/ requestentry.jsp. 20 minutes through crowded rush-hour traffic on city streets? In a food-poisoning case, could ingestion of the food at noon have caused the reaction claimed by 1:00 P.M. The claimant might have been negligent, or the first perceived wrongdoer perhaps was not the correct person, as most food-poisoning cases require 6 to 12 hours from ingestion of the tainted food until onset of symptoms of the illness. The starting point is the time of the alleged injury. Also important, from a fault standpoint or defense standpoint, is what happened that led up to the incident. From the damages standpoint, what happened after the incident, including treatment and subsequent changes in the person’s life or lifestyle, is important. Freedom of Information Act (FOIA) Freedom of Information Act A federal statute permitting access to federal agency records. Web Exploration Obtain a copy of the latest CPSC FOIA report at http:// www.cpsc .gov/LIBRARY/FOIA/foia.html. Web Exploration For information or making an FOIA request to the Department of Justice is available at www .usdoj.gov/04foia/. The Freedom of Information Act is a federal statute designed to open to the public the information possessed by the federal government and its agencies. President Obama issued a memorandum for the heads of executive departments and agencies highlighting the importance of openness of government that resulted in additional information being made available to the public under the FOIA. See Exhibit 9.7. Many federal agencies do not require a formal FOIA request. Some federal agencies, such as the National Transportation Agency, make information available online (Exhibit 9.8). Other agencies, such as the Consumer Product Safety Commission (CPSC), permit requests to be made on the CPSC website (see Exhibit 9.9). The CPSC site also is helpful in finding information about defective products that may be a cause of a client’s injuries. Limitations are placed on the information that an agency may disclose under applicable federal law. See examples in the CPSC limitations shown in the sidebar and the NTSB limitations shown in Exhibit 9.10. Locating Witnesses Most witnesses can be located by use of directories. The Web has also become a valuable tool for locating witnesses. Exhibit 9.7 Freedom of Information Act The federal government is a good source of information. Many of the documents required to be filed are available through the government, and frequently online, such as corporate filings with the Securities and Exchange Commission. Other information may be available by request, under the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Some limitations apply to the information available. The general exceptions, as found in the statute, are: 1. Classified documents concerning national defense and foreign policy. 2. Internal personnel rules and practices. 3. Exemptions under other laws that require information to be withheld, such as patent applications and income-tax returns. 4. Confidential business information and trade secrets. 5. Intra-agency and inter-agency internal communications not available by law to a party in litigation. 6. Protection of privacy of personnel and medical files and private lives of individuals. 7. Law-enforcement investigatory files. 8. Examination, operation, or condition reports of agencies responsible for the regulation and supervision of financial institutions. 9. Geological and geophysical information and data including maps concerning wells. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 349 C H A P T E R 9 Interviewing and Investigation Skills 349 Exhibit 9.8 Simplified online FOIA form to request information not already available from National Transporation Safety Board (NTSB) Directories Investigators usually keep a collection of telephone books of the areas in which they work. Rarely today does a person not have a telephone of some sort, even if it is an unlisted number. In addition to the standard-issue telephone directories, the crossreference directory (also known as a “criss-cross directory”) is a standard tool; these list phone numbers by address or by phone number instead of by name. Therefore, an address may be checked for a corresponding phone number—for example, determining the phone number located at 123 Main Street, or using the phone numbers listed at an address to determine the physical location or billing address of the phone. Telephone directories are not limited to just the United States but typically are published in most parts of the world in one form or another. Companies and businesses also can be located by use of commercial or industrial telephone directories, both domestically and internationally. In addition to telephone directories, directories are published by trade organizations, professional groups, and educational institutions. These directories may be limited to membership but can be useful in cases where the name and the association are known, but not the city, state, or country where the person can be found. Web Exploration Check frequently requested information at the NTSB website http://www.ntsb.gov/ info/foia.htm. The Web As paper is replaced by electronic media, directories are being placed online. Search engines can help locate individuals, businesses, and organizations on the Internet. Communications companies and other private firms offer a number of online white pages for individuals and yellow pages for businesses. Many organizations and publishers of professional directories now offer their print directories online. An example is the Web version of Martindale–Hubbell for attorneys. These services may change or cancel their Web address and others may be added, so the list of websites has to be kept up to date. Web Exploration Experts can be located using the Lexis Nexis/Martindale–Hubbell free website at http://resources .martindale.com/mhes/index.jsp. M09_GOLD0000_00_SE_CH09.QXD 350 12/4/09 Page 350 PA R T I I I Paralegal Skills CPSC LIMITATIONS OF FOIA DISCLOSURE SIDEBAR 11:32 PM Exhibit 9.9 Online Freedom of Information request form for USPSC 15 U.S.C. § 2055. Public disclosure of information release date: 2005-08-01 (a) Disclosure requirements for manufacturers or private labelers; procedures applicable (1) Nothing contained in this Act shall be construed to require the release of any information described by subsection (b) of section 552 of title 5 or which is otherwise protected by law from disclosure to the public. (2) All information reported to or otherwise obtained by the Commission or its representative under this Act which information contains or relates to a trade secret or other matter referred to in section 1905 of title 18 or subject to section 552 (b)(4) of title 5 shall be considered confidential and shall not be disclosed. (3) The Commission shall, prior to the disclosure of any information which will permit the public to ascertain readily the identity of a manufacturer or private labeler of a consumer product, offer such manufacturer or private labeler an opportunity to mark such information as confidential and therefore barred from disclosure under paragraph (2). (4) All information that a manufacturer or private labeler has marked to be confidential and barred from disclosure under paragraph (2), either at the time of submission or pursuant to paragraph (3), shall not be disclosed, except in accordance with the procedures established in paragraphs (5) and (6). . . . The Web is also a good source of information about individuals, both expert and lay witnesses. Social networking sites such as Facebook offer information on millions of people who otherwise would not be in a directory. A search of Facebook, the video website YouTube, blogs, and other similar websites may produce information useful for finding people and learning about them, both good and questionable behavior that might demonstrate a credibility issue. For example, the posting of a Web camera image of a high-profile person like Michael Phelps at a party that resulted in a loss of endorsement contract with a cereal company because of questions of improper conduct. Public postings by the potential parties and witnesses may indicate a potential bias, hostility, or in the case of a potential juror, a predisposition or judgment. In some cases, jurors posting to their websites, Facebook, or other social networking sites may show a violation of jury deliberation secrecy that might result in a new trial. Interviews, Investigations, and Trials It is never too soon to start preparing for trial. Trial preparation starts with the first client contact and gathering the first document. Good preparation for trial includes an M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 351 C H A P T E R 9 Interviewing and Investigation Skills 351 Exhibit 9.10 Limitations on disclosure by the NTSB NTSB EXEMPTIONS The four most common exemptions under which the NTSB withholds information are: (1) 5 USC 552 (b)(5), draft reports and staff analyses (see 49 CFR 801.54); (2) 5 USC 552 (b)(6), personal information, where a personal interest in privacy outweighs a public interest in release; this includes graphic photographs of injuries in accidents and autopsy reports (see 49 CFR 801.55); (3) 5 USC 552 (b)(4), Trade Secrets and/or confidential financial/commercial information submitted by private persons or corporations to the NTSB in the course of an investigation (see 49 CFR 801.59); and (4) 5 USC 552 (b)(3), information protected from release by another statute (see 49 CFR 801.53). This includes information such as: • Cockpit Voice Recorder (CVR) tapes. Release of the tapes is prohibited by 49 USC 1114(c). However, the Board will release a CVR transcript [edited or unedited], the timing of such release is also controlled by statute – 49 USC 1114(c)(B); • Voluntarily provided safety-related information. 49 USC 1114(b)(3) prohibits the release of such information if it is not related to the exercise of the Board’s accident or incident investigation authority and if the Board finds that the disclosure would inhibit the voluntary provision of that type of information; and • Records or information relating to the NTSB’s participation in foreign aircraft accident investigations. 49 USC 1114(e) prohibits the release of this information before the country conducting the investigation releases its report or 2 years following the accident, whichever occurs first. assessment of how well clients and witnesses will react in depositions or in court under the pressure of cross-examination and how they will be perceived by opposing counsel, the judge, or the jury. Will they come across sympathetically as being truthful and likeable? Or will they appear sneaky, unpleasant, and trying to hide the truth? These observational notes may be of great interest when the legal team must decide whether to settle or try the case. A practical consideration in deciding whether to try a case before a jury is how the parties will appear to the jury. If the client appears to be sympathetic and deserving and the opposing party unsympathetic and having adequate financial resources, a jury may try to reward the client with a finding unsupported by the facts or evidence. Effectively managing a case may involve reviewing, sorting, and marking for identification hundreds or even thousands of documents, photographs, and other graphics. Careful tracking and handling should start at the beginning of the case management process. Good case management requires a thoughtful process for storing, handling, examining, evaluating, and indexing every page. In the computer age, case management includes making decisions on the appropriateness and potential use of electronic display technologies, as well as the fallback on traditional paper exhibit preparation. Demonstrative evidence, physical items, such as defective products in a strict liability action or an automobile in a motor vehicle accident, may have to be obtained and preserved for examination by expert witnesses or for use at trial. There are almost as many different approaches to setting up case files and managing cases as there are legal teams. One of the traditional approaches includes the case notebook or case trial notebook. Summary information about the case is maintained in a notebook with tabs for each major activity, party, expert, or element of proof needed. A sample of the sections is shown in Exhibit 9.11. With the use of a trial notebook comes the responsibility to maintain the case file and file boxes or file cabinets into which the hardcopies of documents, exhibits, and physical evidence are maintained. If only one trial or case notebook is kept for the team, someone working on the case must take responsibility to be certain that there is no duplication of effort and that the most Trial notebook A summary of the case tabbed for each major activity, witness, or element of proof. M09_GOLD0000_00_SE_CH09.QXD 352 12/4/09 11:32 PM Page 352 PA R T I I I Paralegal Skills Exhibit 9.11 Sample case file tabs PROOF PRETRIAL MOTIONS RESEARCH-LAW RESEARCH-EVIDENCE PLEADINGS AND ISSUES FACTS AND THEORIES THINGS TO DO REBUTTAL CROSS-EXAMINATION DIRECT EXAMINATION EXHIBITS WITNESSES OPENING STATEMENT JURY SELECTION NOTES DURING TRIAL POST TRIAL MOTIONS COURT FINDINGS AND JUDGEMENT JURY MATTERS FINAL ARGUMENT JURY INSTRUCTIONS MOTIONS DURING TRIAL current activities are entered. When multiple copies are used, each trial notebook must be updated regularly, again to be sure that there is no duplication of effort and that current activity information is made available for all members of the legal team. Case and Practice Management Software Paperless office An office with electronic documents. The legal team may work on a number of cases at the same time, and each case may be in a different stage of preparation for trial. With the team approach to handling cases, each member of the team must be able to access case information and know what the other members of the team have done and what still needs to be done. In the traditional paper file case management approach, the physical file is the repository of everything from interview notes, to pleadings and exhibits. To work on the case, the physical file has to be located and the needed folder removed. In the “paperless” office, everything, in theory, is available on the computer screen. Documents are scanned into an electronic format and saved on the computer, pleadings and notes are saved as wordprocessor files, and transcripts of depositions and court hearings are stored in electronic Paralegals in Practice PARALEGAL PROFILE Kevin D. Gasiewski Kevin D. Gasiewski is a Certified Legal Assistant Specialist in Intellectual Property. After a career in law enforcement, he obtained his first paralegal job in the City Attorney’s Office of Ann Arbor, Michigan. Later, he worked for Ford Global Technologies, LLC, and is now employed by Brooks Kushman P.C. Kevin is an active member of the Legal Assistants Section of the State Bar of Michigan, of which he is a past chairperson and a recipient of its 2003 Mentor Award. My work focuses mainly on trademark prosecution, maintenance, and protection. During the initial interview with a client interested in registering a trademark, it is important to fully identify all team members, vendors, and third-party manufacturers connected to the proposed mark. I also ask questions regarding the mark itself and who designed it, as well as the goods, services, and countries for which it is intended. This data will be needed if the trademark is challenged, and for future maintenance or protection requirements. My job also includes protecting trademarks from illegal use. When customs officials notify us that they are detaining suspected counterfeit goods, I initiate an investigation. I examine the subject trademark, determine the origin of the goods, and ascertain the final destination of the goods. The investigation results help me confirm whether or not the suspect goods are genuine. Interview and investigation data are stored electronically, including contacts’ information, specimen images showing use of the trademark, evidence showing the fame of the mark, and documents filed in support of the mark. The databases I use also contain a field for listing key phrases, words, and acronyms to make data searches easier and more efficient. Although formal education is a definite plus in my field, it is equally important to stress your skills when applying for a paralegal position. Not only were my police investigation and interview skills attractive to employers, these abilities also provided me with the confidence to complete the wide variety of assignments typically encountered as a trademark paralegal. 12/4/09 11:32 PM Page 353 C H A P T E R 9 Interviewing and Investigation Skills form. For the case with voluminous paperwork and days or weeks of deposition transcripts, only by use of computer file software can relevant documents or appropriate deposition notes be accessed quickly and efficiently. A number of software programs can be used to manage the law office and the cases within the office. They generally provide what is sometimes referred to as case management, or practice management. Practice management programs have evolved out of the early programs that tracked time spent on cases, sometimes with a calendar component that could be used to track deadlines such as the statute of limitations for a case. Modern programs may include practice management functions such as time and cost tracking, calendaring, conflict checking, scheduling, and contact management. Others allow for management of the individual cases, tracking of documents, parties, issues, and events. Software Case management software is evolving constantly as the various vendors try to meet the demands and needs of their respective customers. Some nonlegal-specific software has case or practice management-type functions. Microsoft Outlook provides a combination contact manager, calendar–scheduler, task “to do” list, and email function. More sophisticated programs such as Practice Manager from Tabs3 provide the same functions, as well as outlining, billing, integrated research management, timelines, and other functions. LexisNexis CaseSoft provides individual programs that can share data, including CaseMap, TimeMap, TextMap, and NoteMap. One of the features of CaseMap is the ability to organize a case by facts, objects or parties, chronology, as shown in Exhibit 9.12, and then seamlessly create timelines from the chronological information by using the TimeMap program (see Exhibit 9.13). Summation’s litigation support software allows transcripts, documents, issues, and events to be managed using computer technology. Exhibit 9.12 CaseMap features Source: Copyright LexisNexis® CaseMap. 353 VIDEO GUIDELINES Chambers Policies and Procedures Bruce W. Kauffman, J. SIDEBAR M09_GOLD0000_00_SE_CH09.QXD 13. Videotaped Testimony All videotape recordings should be conducted with an acute sensitivity that the videotape may be shown to a jury. Skillful organization of the testimony, elimination of unnecessary objections, and conservation of time are strongly urged. Videotaped testimony should begin with the witness being sworn. Whenever a deposition or videotape is to be used, a transcript of the testimony and all exhibits should be furnished to the Court in advance. Objections should be submitted to the Court well in advance of the tapes being offered so that the tapes may be appropriately edited. Web Exploration The complete set of General Guidelines for Judge Bruce Kauffman may be viewed at www .paed.uscourts .gov/documents/ procedures/kaupol.pdf. M09_GOLD0000_00_SE_CH09.QXD 354 12/4/09 11:32 PM Page 354 PA R T I I I Paralegal Skills Exhibit 9.13 TimeMap features Source: Copyright LexisNexis® CaseSoft. Advice from the Field THE 10 AREAS OF INFORMATION YOU SHOULD ALWAYS HAVE AT YOUR FINGERTIPS Neal R. Bevans The ultimate paralegal resource guide is the place you save every important piece of information you have gathered in your daily work as a paralegal. This resource should contain telephone numbers, e-mails, important dates, notes about attorneys and judges and much more. The couple of hours you spend creating it will save you hundreds of hours throughout your career, give you a competitive edge and make you an invaluable member of your legal team. In fact, having all of this information at your fingertips will make you seem almost superhuman. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 355 C H A P T E R 9 Interviewing and Investigation Skills If putting together your own paralegal resource guide sounds unusual, it isn’t. Legal professionals have been creating their own handy references for decades. When I first started out as a lawyer, a senior partner at my firm had a ragged manila file folder on his credenza containing copies of complaints he previously used in a wide variety of cases. When he needed a new complaint, he would pull out some of those old pleadings and reuse them. Your system might be a similar large file folder on your desk. Perhaps you keep everything stored in a database on your laptop, or in a network folder. Whatever method you currently use to hang on to your important information, you need to pull it all together and put it in one place. Let these 10 categories be your guide to organizing your resources and making your job easier. 1. COMPLETE CONTACT INFORMATION Although there are a lot of telephone database programs available, including some basic software programs that came with most computers, many people find simple solutions are better. A telephone reference is easy to create in any word processing program. The nice thing, about using Corel WordPerfect or Microsoft Word to create these tables is these programs already are running on your computer, you can keep the files open while you work on other materials, you can constantly update your entries and alphabetizing them is a breeze. For instance, Janice Johnson, a paralegal for attorney Russ Becker in Morganton N.C., said she uses a client list she originally created using WordPerfect. Her basic client list includes a chart consisting of the client’s name, phone numbers, postal and e-mail addresses and notes. Johnson said she encourages clients to contact her via e-mail. “I can check on e-mail in an extremely timely manner without having an interruption while a client is in my office,” she said. “I also can respond back without getting caught on a call that ends up going entirely too long, Also, I have a word-for-word record of what information was given to the client through the e-mail contacts.” BlackBerry wireless devices are another great way to store contact information and have become very popular among law firms. Dana Martin, a paralegal at Greenbaum, Doll & McDonald, with offices in Ohio, Kentucky, Tennessee and the District of Columbia, likes the fact that with her BlackBerry, she can retrieve her e-mail anywhere, anytime. “We have Microsoft Outlook and [the BlackBerry] gives wireless access to that and my address book.” She said she takes the BlackBerry with her wherever she goes. 355 The notes category is where your telephone reference really shines. You might not think having a notes section is important, but little details about your contacts really can help. Denise Cunningham, a paralegal for attorney M. Lynne Osterholt in Louisville, Ky., said she lists personal information for many of her contacts. “Along with the addresses, I also put in other information, like birthdays and anniversaries.” Little, personal details, such as remembering a client’s birthday or the names of a client or contact’s children, can help build personal relationships and provide you with substantial help when you need it most. For instance, one client might be able to help you locate another client who is missing or unavailable. Personal relationships with courthouse personnel will put you on the inside track when it comes to things as simple as when to schedule a hearing or earn you a warning phone call when your firm forgets to file appropriate paperwork in a case. 2. ONE CENTRAL CALENDAR Everyone knows having a calendar isn’t a luxury, it’s an absolute necessity. With so much to do and so little time to do it, your calendar must be accurate, easy to access and contain enough information so you can understand what you need to do. “Experts all agree you should have one calendar, not different calendars for work, for play and for the holidays. You should have one calendar for everything,” said Cunningham, who has been a paralegal for almost 25 years. Cunningham said the calendar feature on her Palm is the most used feature and it often comes in handy in court, especially when scheduling court dates. “We write in our appointments or when pleadings are due. We depend on the Palm now, although we also keep a regular calendar. I like the Palm. It’s wonderful and I take it everywhere.” Martin has her BlackBerry synced to her office calendar. “If I have an event on my [office] calendar that would notify me that I had an event coming up, I would get the same notification on my BlackBerry.” Whether you use a book-sized calendar, software or the latest handheld device, the important thing is to have one central calendar that is easy to access and update. 3. COURTHOUSE CONTACTS Whether you decide to go high-tech or stick with lowtech methods to create your paralegal resource, it should contain additional information beyond just telephone contacts and important dates. It should contain plenty of information about the courthouse, including a list of the types of information that can be found in (continued) M09_GOLD0000_00_SE_CH09.QXD 356 12/4/09 11:32 PM Page 356 PA R T I I I Paralegal Skills each office, as well as the names of your contact people in those offices. When you find a friendly face at the courthouse, put that person’s name in your courthouse reference in as many different places as possible. The next time you call that office, ask for that person. 4. ATTORNEY PECULIARITIES No ultimate reference would be complete without an “attorney peculiarities” section. This is a section to remind you about the various idiosyncrasies of the people with whom you must interact everyday. If the attorney has a hang up about the way pleadings are prepared (such as never staple, always use paper clips) then make a running list of these preferences. These notes can save you a lot of time, effort and frustration later. If you get new employees in the firm, you also can provide this list to them. 5. JUDGE PECULIARITIES The basic premise about keeping track of attorney peculiarities applies to judges even more. Every judge with whom I have ever worked has had a different approach to court proceedings, pleadings, drafting orders and even when and where the attorneys should stand in the courtroom. Some judges like to be referred to as “Your Honor” in every context. Some judges have a habit of leaving work everyday at 3 p.m. Other judges think nothing of making you wait for hours outside their offices before they will sign an order. All of these characteristics should be written down for future reference. Attorneys have been doing this for years. When an attorney has a case pending before an unknown judge, he or she always will call a friend and ask about that judge’s characteristics. Then the attorney adapts to that judge’s approach. You should do the same thing. One prosecutor, who preferred to remain anonymous, had a judge who would routinely appear for calendar calls in December wearing a Santa Claus cap. He would then give probation or suspended sentences to nearly every case pending. This is an important piece of information, not only for prosecutors who never wanted to have cases pending before that judge near Christmas, but also for defense attorneys who did. forms should be stored in digital format: These days, many federal courts are requiring pleadings to be filed electronically. “Federal courts are requiring briefs to be filed in Adobe Acrobat,” Martin added. With a complete file of forms and pleadings, you will be ready to go in no time. 7. BRIEF AND MEMO BANKS Your resource also should contain copies of briefs and memoranda used in other cases. We have all had the experience of realizing our current assignment is exactly like a brief we had to prepare last year in another case. Being able to pull up that previous brief can be a huge timesaver and be a real feather in your cap. Although law firms often have firm-wide brief banks, keeping one of your own always is a good idea. The one time you need access to the law firm’s brief bank probably will be the one time the system is down. Having your own brief bank also helps when you have to work at home and have no direct access to the firm’s computer system. Your personal brief bank should contain all of the generic appellate briefs and memos you use on a daily basis. For anything more specialized than that, you always can pull it off the main network later. 8. FREQUENTLY ASKED QUESTIONS If clients ask you the same questions repeatedly, it’s time to digitize the answer and keep it available to print at a moment’s notice. You might have clients who always ask how to get to the courthouse or what they should wear to court. Give them the answer in written form. It’s easier for you and gives them something tangible they can review later. Lisa Mazzonetto, a paralegal at the McDonald Law Offices in Asheville, N.C., handles domestic cases exclusively. She often gets questions about how long it takes to complete a case, what the basic rules about child visitation are, and what a client should do if he or she wishes to have a Temporary Restraining Order taken out against an unruly spouse. Mazzonetto has this information ready in writing, which frees up her time and gives clients a handy reference if they ever need it. 6. ESSENTIAL FORMS One of the primary reasons to create an ultimate paralegal resource is for the forms. Forms are the dirty little secret in the legal profession. Every time you come across a good form, put a copy into your paralegal reference guide. Copy the file over to your CD, store it on your flash memory card and put it someplace where you can access it again. There is another reason your 9. PRIVATE COMPUTER INFORMATION In these days of Internet legal research and databases, it’s important to have a handy reference containing all URLs, passwords and notes about how to access specific sites. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 357 C H A P T E R 9 Interviewing and Investigation Skills “There is an incredible amount of information out there that is key to day-to-day work in a law office. In my field of work, online tax records and register of deeds, [Department of Motor Vehicles] records, postal addresses, Web sites and people locator sites are very important,” Mazzonetto said. To keep all of your passwords confidential, yet easy to access, you can keep the list in a Word table and update it regularly. You also can password-protect the file to keep the wrong people from accessing it. 10. VENDOR AND SUPPLIER RECORDS Your ultimate resource should contain information about all your office hardware and software, including vendor names, toll-free support numbers, license numbers and any other information you will need to get help if you have software or hardware problems. Keeping this information in your resource guide can save you a lot of time, especially when a service representative asks you for information contained on the computer or program that isn’t currently working. CREATING A DIGITIZED RESOURCE GUIDE Now that you know the most important areas to include in your resource guide, you must decide in what format you will keep the information accessible. People have different preferences as to the format that suits them best. Some like to keep a binder with all the information printed out, while others prefer to keep a fully digitized version. Still others prefer a combination of both print and digital records for their resource guides. There are a lot of different legal software programs available with which you can create a digital paralegal resource guide. They range from simple databases to complete law firm packages containing billing and accounting software, calendar features and complex databases. In high-tech offices, the calendar and case management system is available firm-wide and can be accessed by anyone on the network. However, not all law offices have taken this step into the 21st century. In situations where the office is filled with standalone systems, you will keep this information on your computer and on a backup CD. David Moyer uses database programs to create lists of clients and documents in his freelance paralegal practice in Cuyahoga, Ohio. “I use database programs, 357 such as Microsoft Access and Excel. I use the databases for client conflict of interest checks, to name just one example.” Use programs that have been tried and tested in the real world or in firms similar in size and structure to your firm. Mazzonetto’s firm uses Time & Chaos (www .chaossoftware.com). “It acts as our daily, weekly and monthly calendar; client address book and To-Do lists. It’s very inexpensive, but an incredible asset.” Johnson’s North Carolina firm uses Abacus Data Systems AbacusLaw (www.abacuslaw.com), which has been around for years and functions as a client database, calendar and docketing system. “We use Abacus as a database and tracking system here at our office,” Johnson said. “I don’t know how we survived as well as we did before we went to this system. Today, not to have some type of program for client information and management, along with a deadline system is like living in the dark ages and asking for a malpractice suit.” Martin’s firm has a separate Information Technology division. “We have a very complex piece of software that keeps track of client information, accounting, billing and case management. Our whole office is really tied together. We are a regional firm and everybody can get to the same documents.” For many firms, tailor-made programs are the best way to go. Norma Schvaneveldt, a paralegal in Chattanooga, Tenn., said her former firm, Eric Buchanan & Associates, relied on software created for the firm’s specialty area of law. “We kept track of client information on the computer through a case management software program especially configured to handle Social Security cases. We also used it for our long-term disability cases. If you were out of town and needed to review a file, as long as you had Internet access, you could review any file.” THE POWER OF YOUR RESOURCE GUIDE The smartest thing you can do with your ultimate paralegal resource is to organize it and keep it all in one place. Let everyone in the firm think you are superhuman, with an incredible memory for names, dates, telephone numbers and the myriad of other information law firms need on a daily basis. Your ultimate paralegal resource can be your secret weapon. “Ultimate Resource Guide” by Neal R. Bevans, January/February 2005. As seen in the January/February 2005 issue of Legal Assistant Today. Copyright 2005 James Publishing Inc. Reprinted courtesy of Legal Assistant Today magazine. For subscription information call (800) 394-2626, or visit www.legalassistanttoday.com. M09_GOLD0000_00_SE_CH09.QXD 358 12/4/09 11:32 PM Page 358 PA R T I I I Paralegal Skills CHECKLIST Investigation Information Sources Information Source Web Address Police Records–Local www. Police Records–State www. Birth Records www. Death Records www. Drivers License www. Vehicle Registration www. Corporate Records www. Real Estate–Recorder www. Real Estate–Tax www. Real Estate–Land Mapping www. Register of Wills www. Trial Court www. Federal District Court–Clerk’s Office www. Federal Bankruptcy Court www. Occupational License www. Weather Reports Physical Location Comments www. Room Federal Court House Personalize this list by adding the local or regional office Web addresses, mailing addresses, and room numbers for personal visits, and comments, with any applicable contact people, costs, or hours of operation. Concept Review and Reinforcement LEGAL TERMINOLOGY Arbitration 343 Attorney–client privilege 329 Conflict of interest 329 Ethical obligation 339 Ethical wall 329 Expert witnesses 340 Freedom of Information Act (FOIA) 348 Implied attorney–client relationship 329 Leading questions 337 Moral obligation 339 Narrative opportunity 338 Open-ended questions 338 Privileged communication 339 Restatement of the Law Third, Torts 342 Screening interview 328 Spoliation of evidence 347 Strict liability 342 Statute of limitations 329 Trial notebook 352 SUMMARY OF KEY CONCEPTS Interviews/Interviewing Interview Any contact you have with a client, or prospective client is an interview. Screening Interview The typical first contact with a client usually is a telephone call, but some people just appear at the office door, asking for an appointment or basic information about the firm’s ability or interest in taking a case. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 359 C H A P T E R 9 Interviewing and Investigation Skills 359 First Meeting 1. The paralegal must be careful to make clear that he or she is a paralegal and not an attorney. 2. The paralegal must build a relationship with the individual, let him or her understand the purpose of the interview, and eliminate any barriers that would prevent obtaining the necessary information. Implied Attorney–Client Relationship If too much information is taken, the potential client will think he or she now has a lawyer. The courts have ruled on the side of the potential client holding that an implied attorney–client relationship exists. Cultural Sensitivity The culturally sensitive person is aware of the reasons for differences in the way people behave, based on religious and ethnic background and belief system. Preparing for the Interview Outcomes 1. The first step is to understand the outcomes desired, one of which is to instill confidence in the firm and its personnel. 2. The desired outcome of any interview is to obtain all needed, relevant facts for the case. Physical Surroundings Depending upon purpose of interview and the person being interviewed, a formal or an informal environment may be desired. Dress and Appearance Clothing worn in an interview sends a nonverbal message about the paralegal and the firm or business, and the initial impression can enhance or destroy credibility. Communication Skills in a Multicultural Society Interviewers must appreciate the difference of how and why individuals act and react differently. Listening Skills Learning to listen to “What” is being said and not just the words. Leading Questions Questions that suggest the desired answer. Lawyers in conducting a cross-examination in trial frequently use leading questions to force the witness to answer in a desired manner. Open-Ended Questions Questions designed to create a narrative opportunity for the witness. Moral Versus Ethical Considerations Moral Obligations Based on one’s own conscience or perceived rules of correct conduct, generally in the person’s own community. Ethical Obligations Obligations of legal profession under ABA Model Rules of Professional Conduct, including thoroughness in representing a client. Privileged Communications Forms of Privileged Communications Attorney–client communications Doctor–patient communications Priest–penitent communications Spousal communications during marriage Waivers Privileges can be waived, but the waiver must come from the client, the patient, the penitent, or the spouse making the statement with the belief that it is privileged. Investigating Claims Expert Witnesses Definition Expert witnesses are individuals whose background, education, and experience are such that courts will recognize them as qualified to give opinions based on a set of facts. M09_GOLD0000_00_SE_CH09.QXD 360 12/4/09 11:32 PM Page 360 PA R T I I I Paralegal Skills Freedom of Information Act (FOIA) Definition FOIA is a federal statute designed to open to the public the information in the possession of the federal government and its agencies. Locating Witnesses Directories 1. Phone books 2. Cross-reference directories 3. Membership directories The Web Search engines can help locate individuals, businesses, and organizations on the Internet. It is also a source of information about individuals from public sources and social networking sites. Interviews, Investigations, and Trials Trial Preparation Trial preparation starts with the first client contact and the gathering of the first document. Good preparation for trial includes an assessment of how well clients and witnesses will react in depositions or in court under the pressure of cross-examination and how they will be perceived by opposing counsel, the judge, or the jury. Case Management Good case management requires a thoughtful process for storing, handling, examining, evaluating, and indexing every page. In the computer age, case management involves decisions on the appropriateness and potential use of electronic display technologies, as well as the fallback on traditional paper exhibit preparation. Traditional Case Management Traditional approaches includes the case notebook or case trial notebook. Case and Practice Management Software A number of software programs can be used to manage the law office and the cases within the office, in what is sometimes referred to as case management or practice management. WORKING THE WEB 1. Use MapQuest to print out a map of the local area around your school. www.Mapquest.com 2. Use the MapQuest directions feature to obtain driving directions from your home to your school’s main entrance. Don’t worry if you live a long distance from your school. Print out the directions and related maps anyway. 3. Repeat items 1 and 2 using Yahoo! Maps. http://maps .yahoo.com and Mapblast from MSN www.mapblast .com. Which gives you the most information? 4. Obtain a satellite image of your school from Google Earth. http://earth.google.com. How might this be more helpful in investigating a case than the other maps available on the Internet? 5. Use Findlaw to locate an accounting expert in your state. www.findlaw.com. Print out a list of experts listed. 6. Use the LexisNexis Martindale–Hubbell website to locate an expert witness for a patent intellectual property case involving electronics. Print out a copy of the contact information you find. 7. Using the search function of your computer browser, find and print out a copy of Rule 26 of the Federal Rules of Civil Procedure. 8. Download a trial copy of TimeMap from LexisNexis on the Technology Resources Website—www.prenhall.com/ goldman. 9. Prepare a timeline of the assignments and exams for the courses you currently are taking. Print a copy of the timeline. 10. Assume you have been asked to work on the case of a pedestrian struck by a car going north on the west side of the Flat Iron Building in Manhattan (New York City). Print out a satellite image of the location showing the building and the traffic flow using Earth Google at www .earth.google.com. Note that you will have to download the Earth Google viewer. Check with your instructor before downloading on a school computer. What is the proper direction of the vehicle traffic? Was the crosswalk visible? Were any other potential images available? Prepare a short report memorandum about your findings. M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 361 C H A P T E R 9 Interviewing and Investigation Skills 361 CRITICAL THINKING & WRITING QUESTIONS 1. What are the legal and ethical issues involved for the paralegal when the potential client says he or she just wants a quick answer to the question, “Do I have a case?” Explain fully, including references to your state statute. 2. What is a screening interview? What potential ethical and malpractice issues are involved? 3. How is the implied attorney–client relationship created? What are the critical issues for the law firm when this relationship is established? 4. Does the attorney have a duty to keep the names of clients confidential? Explain the ethical rules that apply. 5. What are the ethical and or legal implications of not advising a party that you are a paralegal and not a lawyer? 6. What is the difference between listening and hearing? Explain. 7. How can stereotypes prevent hearing what is said in interviews? 8. What effect do cultural issues play in the interview process? Explain. 9. What are the strategic reasons for using leading questions and using open-ended questions? Give an example of when each would be better used than the other type. 10. In representing a client, is it acceptable or required to ignore an ethical or moral consideration? Explain, giving an example and reason for breaching each. 11. Explain fully the ultimate reason for conducting a thorough investigation of a case. What ethical issues dictate how an investigation is to be conducted? 12. How can the Internet be used to effectively conduct an investigation of a case? Explain, using examples of traditional methods that also could be used. 13. Using the Facts in the Palsgraf case in Appendix A, prepare a list of witnesses who might be called in that case. Prepare an interview checklist for each of the witnesses. 14. Using the Facts in the Palsgraf case in Appendix A, prepare an investigative checklist, including a list of the evidence that should be gathered in the case, including a list and description of any photographs needed. 15. In conducting an interview, when would it be appropriate to dress in “Friday casual” attire? 16. Why is it important to visit the site of the accident in a motor-vehicle case being prepared for trial? 17. Under what circumstances might it be advisable for someone other than you in the firm to handle an interview with a client or witness? 18. Why would someone feel a moral obligation not to answer questions in an interview? 19. Why would a law firm hire an expert witness and not call that person as a witness at trial? 20. How useful is the Freedom of Information Act in obtaining state or local government documents? Explain. 21. Can a client restrict the use of information obtained as part of the investigation in preparation for trial even if doing so will have adverse consequences in the opinion of the attorney? Why or why not? 22. What are the issues and potential problems in using a trial notebook? 23. How does the use of case management software improve the effectiveness of the legal team? Who has the ultimate responsibility for managing the case file when using case management software? Building Paralegal Skills VIDEO CASE STUDIES UPL Issue: Interviewing a Client A lawyer is meeting with a new client when he is called away, leaving his paralegal to complete the interview. After viewing the video case study at www.pearsonhighered.com/goldman answer the following: 1. Should the paralegal clarify his or her role as a paralegal when meeting a new client? 2. Can a paralegal give a client an opinion of whether a case exists? 3. What kind of questions should be asked in interviewing a new client? UPL Issue: Working with a Witness A paralegal investigating an accident case in the field creates the impression that he is acting in an official capacity requesting a fact witness to appear to give a formal statement. When the fact witness appears for the statement, he is offered compensation for his time. After viewing the video case study at www.pearsonhighered .com/goldman answer the following: 1. Does the paralegal have a duty to divulge his role as a paralegal when interviewing potential witnesses? 2. Is it appropriate to offer compensation to a fact witness? 3. Should the same rules of ethics apply to investigators as well as to paralegals? M09_GOLD0000_00_SE_CH09.QXD 362 12/4/09 11:32 PM Page 362 PA R T I I I Paralegal Skills Zealous Representation Issue: When You Are Asked to Lie A paralegal has been instructed by his supervising attorney to do whatever is necessary to obtain information needed in a particular case. After viewing the video case study at www.pearsonhighered .com/goldman answer the following: 1. What is pretexting? 2. Is it ethical to lie to obtain needed information? 3. Is a paralegal bound by ethical rules when acting as an investigator? ETHICS ANALYSIS & DISCUSSION QUESTIONS 1. Review the opening scenario of this chapter. What are the ethical issues involved? Prepare a suggested policy, referencing the specific ethics code sections, to present to the supervising attorney of the firm. Address the issues of how to answer the phone and what should and should not be said. Your instructor may provide you with specifics, such as the fee for an initial consultation. DEVELOPING YOUR COLLABORATION SKILLS Working on your own or with a group of other students assigned by your instructor, review the scenario at the beginning of the chapter and the discussion that takes place between Sara and Mrs. Weiser. 1. a. Prepare a list of questions Sara should prepare before starting work. Discuss who should be asked and what action she should or should not take. b. What are the ethical issues facing Sara? c. What are the potential malpractice issues facing the firm? 2. Write a summary of the advice the group would give to Sara. 3. Form groups of three. Designate one person who will act as Sara, one as a potential client, and the third as a supervising paralegal. a. As the paralegal interviewer for the client who has just walked in the door of the office after being injured in an accident, use the facts of the Palsgraf case in the Appendix or one assigned by your instructor. b. As the client, you want to be sure that you have a case and that the fee is acceptable. c. As the supervising paralegal, comment on the interview, what issues were raised, and what you would have done differently. PARALEGAL PORTFOLIO EXERCISE Using the current information for your area or jurisdiction, complete the Investigation Information Source Checklist. Print out a copy for your portfolio. LEGAL ANALYSIS & WRITING CASES Limitations on Obtaining Information in Criminal Cases Under the FOIA The FOIA can be a good source of information in criminal cases as well as civil litigation. As with discovery-limitation exemptions in civil cases, additional exemptions exist under the Act in criminal cases. Landano was convicted in New Jersey state court for murdering a police officer during what may have been a gang-related robbery. In an effort to support his claim in subsequent state court proceedings that his rights were violated by withholding material exculpatory evidence, he filed Freedom of Information Act requests with the Federal Bureau of Investigation (FBI) for M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:32 PM Page 363 C H A P T E R 9 Interviewing and Investigation Skills information it had compiled in connection with the murder investigation. When the FBI redacted some documents and withheld others, Landano filed an action, seeking disclosure of the contents of the requested files. The court held that the government is not entitled to a presumption that all sources supplying information to the FBI in the course of a criminal investigation are confidential sources within the meaning of Exemption 7(D). Further, a source should be deemed “confidential” if the source furnished information with the understanding that the Department of Justice v. Landano 363 FBI would not divulge the communication except to the extent it thought necessary for law-enforcement purposes. Questions 1. Does this unfairly subject an informant to potential harassment? 2. Does limiting information unfairly prevent the defendant from receiving a fair trial? 3. Does the limitation effectively limit any usefulness in making a request under the FOIA? 508 U.S. 165 (1993) Spoliation of Evidence In Re Daimlerchrysler Ag Securities Litigation (Usdc Del. 2003), Civil Action No. 00-993-JJF Defendants requested relief in the form of sanctions against the plaintiff for the spoliation of evidence contending that a personal assistant to one of the Plaintiffs, Jaclyn Thode, had destroyed documents that she used to prepare a list of meetings and/or conversations prepared at the request of general counsel, who had failed to instruct her to preserve the documents used in making the list. The court in ruling on the defendant’s motion concluded that sanctions were not warranted as a result of the alleged spoliation of evidence. The un-rebutted deposition testimony and affidavit of Ms. Thode establish that she discarded her handwritten notes after converting them into typewritten form, consistent with her practice in the past. Ms. Thode had no information or understanding about the substance of the litigation and no information as to the purpose of counsels’ request, and thus she had no reason to alter or omit any information from the documents and that she acted unintentionally when she discarded the steno pads and pink message notes. The Court also found the Defendants did not suffer any prejudice, because they had a complete and accurate chronology of the contents of the documents that were discarded. The court cited Son, Inc. v. Louis & Nashville R.R. Co., 695 F.2d 253, 259 (7th Cir.1982) (finding that destruction of evidence was not intentional where handwritten notes were discarded after being typed and person handling evidence had no reason to omit or alter necessary information). Questions 1. Should the investigation of a case where documents include transcription include inquiry to the source of transcripted notes? Why or why not? 2. Why would not knowing the purpose of creating the notes matter in determining the potential spoliation of evidence? 3. What advice would you give to someone who has the responsibility of transcribing or keeping minutes of meetings? WORKING WITH THE LANGUAGE OF THE COURT CASE Department of the Interior v. Klamath Water Users Protective Association 532 U.S. 1 (2001) Supreme Court of the United States Read, and if assigned, brief this case. In your brief, answer the following questions. 1. What are the two conditions under which a document qualifies for exemption under the Freedom of Information Act, Exemption 5? 2. How is “agency” defined under the FOIA? 3. What is the “deliberative process” privilege? Does non-governmental litigation have an equivalent privilege? 4. What is the purpose of the deliberative process privilege? 5. What is the “general philosophy” behind the FOIA? (continued) M09_GOLD0000_00_SE_CH09.QXD 364 12/4/09 11:32 PM Page 364 PA R T I I I Paralegal Skills Justice Souter delivered the opinion of the Court. Documents in issue here, passing between Indian Tribes and the Department of the Interior, addressed tribal interests subject to state and federal proceedings to determine water allocations. The question is whether the documents are exempt from the disclosure requirements of the Freedom of Information Act, as “intraagency memorandums or letters” that would normally be privileged in civil discovery [5 U.S.C. § 552(b)(5)]. We hold they are not. I . . . [T]he Department’s Bureau of Indian Affairs (Bureau) filed claims on behalf of the Klamath Tribe alone in an Oregon state-court adjudication intended to allocate water rights. Since the Bureau is responsible for administering land and water held in trust for Indian tribes . . . it consulted with the Klamath Tribe, and the two exchanged written memorandums on the appropriate scope of the claims ultimately submitted. . . . The Bureau does not, however, act as counsel for the Tribe, which has its own lawyers and has independently submitted claims on its own behalf.1 . . . [T]he Klamath Water Users Protective Association is a nonprofit association of water users in the Klamath River Basin, most of whom receive water from the Klamath Project, and whose interests are adverse to the tribal interests owing to scarcity of water. The Association filed a series of requests with the Bureau under the Freedom of Information Act (FOIA) [5 U.S.C. § 552] seeking access to communications between the Bureau and the Basin Tribes during the relevant time period. The Bureau turned over several documents but withheld others as exempt under the attorney workproduct and deliberative process privileges. These privileges are said to be incorporated in FOIA Exemption 5, which exempts from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” [§ 552(b)(5)]. The Association then sued the Bureau under FOIA to compel release of the documents. . . . 1 The Government is “not technically acting as [the Tribes’] attorney. That is, the Tribes have their own attorneys, but the United States acts as trustee” [Tr. of Oral Arg. 5]. “The United States has also filed claims on behalf of the Project and on behalf of other Federal interests” in the Oregon adjudication [Id. At 6]. The Hoopa Valley, Karuk, and Yurok Tribes are not parties to the adjudication. [Brief for Respondent 7] Upon request, FOIA mandates disclosure of records held by a federal agency, see 5 U.S.C. § 552, unless the documents fall within enumerated exemptions. . . . A Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” [5 U.S.C. § 552(b)(5)]. To qualify, a document must thus satisfy two conditions: Its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it. Our prior cases on Exemption 5 have addressed the second condition, incorporating civil discovery privileges. . . . So far as they might matter here, those privileges include the privilege for attorney work-product and what is sometimes called the “deliberative process” privilege. Work-product protects “mental processes of the attorney” while deliberative process covers “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front-page news, and its object is to enhance “the quality of agency decisions,” . . . by protecting open and frank discussion among those who make them within the Government. . . . The point is not to protect Government secrecy pure and simple, however, and the first condition of Exemption 5 is no less important than the second; the communication must be “inter-agency or intra-agency” [5 U.S.C. § 552(b)(5)] . . . With exceptions not relevant here, “agency” means “each authority of the Government of the United States,” and “includes any executive department, military department, Government corporation, Government- controlled corporation, or other establishment in the executive branch of the Government . . . , or any independent regulatory agency.”. . . Although neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders, some Courts of Appeals have held that in some circumstances a document prepared outside the Government may . . . qualify . . . under Exemption 5. . . . It is . . . possible . . . to regard as an intra-agency memorandum one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally M09_GOLD0000_00_SE_CH09.QXD 12/4/09 11:33 PM Page 365 C H A P T E R 9 Interviewing and Investigation Skills conferred capacity other than on behalf of another agency—e.g., in a capacity as . . . consultant to the agency. Typically, courts taking the latter view have held that the exemption extends to communications between Government agencies and outside consultants hired by them. . . . In such cases, the records submitted by outside consultants played essentially the same part in an agency’s process of deliberation as documents prepared by agency personnel might have done. . . . [T]he fact about the consultant that is constant . . . is that the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do. B . . . The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate, interests in mind. While this fact alone distinguishes tribal communications from the consultants’ examples recognized by several Courts of Appeals, the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone. . . . All of this boils down to requesting that we read an “Indian trust” exemption into the statute, a reading that is out of the question for reasons already explored. There is simply no support for the exemption 365 in the statutory text, which we have elsewhere insisted be read strictly in order to serve FOIA’s mandate of broad disclosure, which was obviously expected and intended to affect Government operations. In FOIA, after all, a new conception of Government conduct was enacted into law, “a general philosophy of full agency disclosure.” Congress had to realize that not every secret under the old law would be secret under the new. The judgment of the Court of Appeals is affirmed. It is so ordered. The differences among the various circuits on the use of unpublished opinions was clarified by the Amendment to the Federal Rules of Appellate Procedure approved by the United States Supreme Court on April 12, 2006, when it approved the citation of unpublished opinions. The proposed new Rule 32.1 as submitted for comment to Congress provided; Proposed new Rule 32.1 permits the citation in briefs of opinions, orders, or other judicial dispositions that have been designated as “not for publication,” “non-precedential,” or the like and supersedes limitations imposed on such citation by circuit rules. New Rule 32.1 takes no position on whether unpublished opinions should have any precedential value, leaving that issue for the circuits to decide. The Judicial Conference amended the proposed rule so as to apply prospectively to unpublished opinions filed on or after January 1, 2007. A court may, by local rule, continue to permit or restrict citation to unpublished opinions filed before that date. ...
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