Second Day, Wednesday

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Informal Fact Gathering
& Investigation
2nd Class Session
LEGL 261
Chapter Objectives
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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.
Structuring Fact Investigations
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Facts consist of what people
heard, said, or did regarding an
incident.
Two ways of "getting the facts"
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informal before suit
formal discovery
Fact Investigations
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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.
Causes of Action
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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
Causes of Action
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How do I find the elements of
causes of action
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Law books (Witkin, Summary of California
Law)
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Jury Instructions
Case law
Statutes
Litigation Chart
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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
The Elements of CofA
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“Cause of Action”: The “wrong”
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Example: Civil Assault
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Intent
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
CofA: Negligence
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Duty
Breach of Duty
Harm proximately caused by breach of
duty
Resulting in injury
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(Ladd v. County of San Mateo (1996) 12
Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911
P.2d 496].)
Case Study: Palsgraf
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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.
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http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.
Dominoes? Foreseeable
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Element of Foreseeablity:
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It began with a single row boat…
Negligence Chart
Elements Sources
Duty
Formal
Defendant Interrogs
Informal
Police rpt
Breach
Witnesses Depos
Police
report
Police
Causation Plaintiff
depo of dr. plaintiff
Damages
Doctor
plaintiff
subpena
Meds
plaintiff
Criminal Elements?
Elements of Burglary Offense
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Trespass
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Breaking
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Entry
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Dwelling
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Nighttime
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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.
Elements: Contract
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Offer
Acceptance
Consideration
Form
Legality
Capacity
Sources of Facts
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The Five Main Sources for Facts:
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The client
Exhibits
Witnesses
Experts
The opposing parties
Informal Investigations
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Four sources for informal
investigations
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The client
Exhibits
Witnesses
Experts
Client Interviews
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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:
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May be embarrassed to reveal some facts;
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.
Preparation for Interview
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Have client bring all paper work
Have client fill out a New Client
Form
Have an interview form
Initial Client Interview
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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
Initial Client Interview
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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;
Initial Client Interview
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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
Evaluating The Case
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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
Evaluating The Case
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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
Evidence
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Two types of evidence
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Testimony
Physical evidence
Getting The Evidence
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Identify all exhibits
The scene
Physical evidence
Records and documents
Interviewing Witnesses
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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.
Interviewing Witnesses
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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.
Structuring Witness Interviews
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Witness background
Story in witness' own words
Detailed chronology
Questions focused on the
theory of the case.
Evaluate The Witness
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Write a short memo to the file or
attorney evaluating the witness by
appearance, verbal skills, non-verbal
communication, credibility, etc.
Expert Witnesses
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Many cases need expert witnesses to
help establish liability or prove
damages.
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Consulting experts
Testifying Experts
Venue
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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.
The First Documents & Letters
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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?)
Retainer
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No retainer, no service
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Decline letters are important
Notice of waiting for retainer?
Client Contact Letter
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Thank them
Build confidence and trust
Inform them
Get any needed docs or info
Form a record of representation
Letter to Opposing Party
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If represented, do not send to
defendant!
Inform
Request
Intimidate?
Demand Letter
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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?
Litigation Technology
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Communication
Data Storage
Organization
Case Management
Dates and Deadlines
Billing
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