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LEGL 261

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How to structure a factual investigation
Where to obtain facts to prove your client's case
How to interview clients
When and how to gather documents that may be used as evidence
Where to locate witnesses
How to use the internet to gather facts.

 Facts consist of what people heard, said, or did regarding an incident.
 Two ways of "getting the facts"
 informal before suit
 formal discovery

 In litigation the facts and the law are intertwined.
 The facts can make or break a case.
 Facts are applied to the law to make a case.

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A cause of action is the theory of recovery that entitles the plaintiff to recover damages or equitable remedies against the defendant.
Examples:
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Negligence
Fraud
Breach of Contract

 How do I find the elements of causes of action
 Law books
(Witkin, Summary of California
Law)
 Jury Instructions
 Case law
 Statutes

 A Litigation Chart can help to structure your fact investigation and identify the major parts of a litigation plan:
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Elements of claims
Sources of proof
Informal fact investigation
Formal discovery

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“Cause of Action”: The “wrong”
 Example: Civil Assault
 Intent
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To cause harmful or offensive contact reasonable belief about to be touched in a harmful [or an offensive] manner or was threatened to touch …
Imminent and capable
No consent
Harm, and substantial factor in causing harm

California Civil Jury Instructions
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1301. Assault —Essential Factual Elements
[ Name of plaintiff ] claims that [ name of defendant ] assaulted [him/ her]. To establish this claim, [ name of plaintiff ] must prove all of the following:
[1. That [ name of defendant ] acted, intending to cause harmful [or offensive] contact;
2. That [ name of plaintiff ] reasonably believed that [he/she] was about to be touched in a harmful [or an offensive] manner;]
[or]
[1. That [ name of defendant ] threatened to touch [ name of plaintiff ] in a harmful [or an offensive] manner;
2. That it reasonably appeared to [ name of plaintiff ] that [ name of defendant ] was about to carry out the threat;]
3. That [ name of plaintiff ] did not consent to [ name of defendant ]’s conduct;
4. That [ name of plaintiff ] was harmed; and
5. That [ name of defendant ]’s conduct was a substantial factor in causing [ name of plaintiff ]’s harm.
[A touching is offensive if it offends a reasonable sense of personal dignity.]
[Words alone do not amount to an assault.]

Battery —Essential Factual Elements
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[ Name of plaintiff ] claims that [ name of defendant ] committed a battery. To establish this claim, [ name of plaintiff ] must prove all of the following:
1. That [ name of defendant ] [touched [ name of plaintiff ]] [or]
[caused [ name of plaintiff ] to be touched] with the intent to harm or offend [him/her];
2. That [ name of plaintiff ] did not consent to the touching; and
3. That [ name of plaintiff ] was harmed [or offended] by [ name of defendant ]’s conduct; [and]
[4. That a reasonable person in [ name of plaintiff ]’s situation would have been offended by the touching.]
California Civil Jury Instructions (CACI)
1300

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Duty
Breach of Duty
Harm proximately caused by breach of duty
Resulting in injury
 ( Ladd v. County of San Mateo (1996) 12
Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911
P.2d 496].)

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Long Island Rail Road station. A passenger carrying a package, while hurrying to catch and board a moving train , appeared to two of the railroad 's
( Defendant 's) employees to be falling. The employees were guards, one of whom was located on the car, the other of whom was located on the platform.
The guard on the car attempted to pull the passenger into the car and the guard on the platform attempted to push him into the car from behind.
The guards' efforts to aid the passenger caused the passenger to drop the package he was holding onto the rails. Unbeknownst to the guards, the package, which was approximately 15 inches long and wrapped in newspaper, contained fireworks , and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform (although later accounts suggest that a panicking bystander may have upset the scale), which injured Mrs. Helen Palsgraf ( Plaintiff ).
Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee. The trial court and the intermediate appeals court found for
Palsgraf (Plaintiff) by verdict from a jury, and Long Island Rail Road appealed the judgment.
It should be noted that Mrs. Palsgraf's injuries were not physical; she claimed to be suffering from a "nervous disorder" as a consequence of the incident.
 http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co
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 Element of Foreseeablity:
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It began with a single row boat…

Elements Sources Formal Informal
Duty Defendant Interrogs Police rpt
Breach Witnesses
Police
Causation Plaintiff
Depos Police report depo of dr. plaintiff
Damages Doctor plaintiff subpena Meds plaintiff

Elements of Burglary Offense
 Trespass
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Breaking
Entry
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Dwelling
Nighttime
Intent Under the common law, an intent to commit a felony at the time of breaking and entering into the dwelling was an essential element of burglary. Since Larceny was a felony at common law, an intent to commit a larceny would suffice.
Statutes vary from one jurisdiction to another. An intent to commit a felony is no longer required for all grades of the offense. In some states an intent to commit any crime will suffice.

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Offer
Acceptance
Consideration
Form
Legality
Capacity

 The Five Main Sources for Facts:
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The client
Exhibits
Witnesses
Experts
The opposing parties

 Four sources for informal investigations
 The client
 Exhibits
 Witnesses
 Experts

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Just take down the facts; do not give legal advice.
Try to get full disclosure of the facts. Some clients will try to color or hide the facts because:
 May be embarrassed to reveal some facts;
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May try to say what he thinks the paralegal wants to hear;
May feel you will judge him.
Remind client to reveal the whole truth.

 Have client bring all paper work
 Have client fill out a New Client
Form
 Have an interview form

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Offer the client something to drink
Talk to the client informally; ask him about himself
Let the client know what's going to happen during the interview;
Have the client tell the story of what happened to him
Get a detailed chronological history of the events; if possible get dates

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Tell the client you may attempt to verify certain facts with an other source.
Ask client what he/she believes the other side will say;
Facts bearing on liability must be developed fully. Details are critical.
Obtain information on damages and sources of insurance;

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Get the client's personal background information
Find out the names of all parties involved
Do not make any commitments about taking the case until you speak with the attorney

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Are there any cross-claims?
What defenses will the other side have?
What the statutes of limitations for each of the causes of action
List all possible witnesses

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 Determine all records and documents pertinent to the case
What physical evidence is there?
Has the client spoken to other law firms?
What does the client want?
Do periodic interviews by phone or in person

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 Testimony
 Physical evidence

 Identify all exhibits
 The scene
 Physical evidence
 Records and documents

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 Try to interview each witness, favorable or not
Decide the order in which to interview them
Locate those witnesses for whom you do not have a number or address. If you cannot find the person on your own, you may have to hire an investigator.

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Set up the interview (in person is best)
Make a list of the questions you need answered before calling.
At the interview, make the witness feel as comfortable as possible. Be friendly and open.
Ask the witness if you can record his answers or get a written statement.
Pin the witness down to details.

 Witness background
 Story in witness' own words
 Detailed chronology
 Questions focused on the theory of the case.

 Write a short memo to the file or attorney evaluating the witness by appearance, verbal skills, non-verbal communication, credibility, etc.

 Many cases need expert witnesses to help establish liability or prove damages.
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Consulting experts
Testifying Experts

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The county in which the facts are alleged to have occurred and in which the trial will be held.
Venue is the legally proper place where a particular case should be filed or handled. Every state has rules determining the proper venue for different types of lawsuits. For example, the venue for a paternity suit might be the county where the mother or the man alleged to be the father lives.
The venue is the county from which the jury are to come, who are to try the issue.
The pleadings support a venue.

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Retainer Agreement
Letter to client (in/out)
Letter to opposing party
Letter to evidence sources (medical?)
Request for police (or official) reports
Waivers, if needed (HIPAA?)

 No retainer, no service
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Decline letters are important
Notice of waiting for retainer?

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Thank them
Build confidence and trust
Inform them
Get any needed docs or info
Form a record of representation

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If represented, do not send to defendant!
Inform
Request
Intimidate?

 If case is ready
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May not need to litigate
Get sense of opposing party’s positions
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Don’t give away too much
What to put in? What to leave out?

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Communication
Data Storage
Organization
Case Management
Dates and Deadlines
Billing