Civil Litigation Chapter 4

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Civil Litigation Chapter 4
2013-02-18 13:50:05
Civil Litigation

Civil Litigation Chapter 4
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  1. Reasonable inquiry
    Must make sure that the legal action is justified by gathering information via initial interviews, further investigation, verify facts.

    Consequence for not doing a thorough investigation is to have a frivolous case and it is thrown out of court for not being factual.

    Can obtain a police report, medical records, insurance coverage information, DMV records (is license current, was a ticket issued), employment records, tax records, weather from that day, mechanic report, personal property repair report, photos
  2.  Causes of action
    Dont ASS U ME

    You have 2 ears and 1 mouth... listen twice as much as speaking

    Active listening - Repeat back what you hear

    Plead the alternative - in Wisconsin you can plead more than 1 issue
  3. Steps of case analysis
    • Cast of characters
    • Chronology
    • Issues list
    • List of unanswered questions
    • Schedule interview between client and atty
    • Interview questionaire
  4. Cast of characters
    • Could be:
    • Individual
    • Organization
    • Key documents
    • Physical evidence
  5. Chronology
    Facts in order of occurrence

    Use the symbol of a question mark in your notes to signify the unknown

    Sources of fact
  6. Issues list
    • Cause of action plaintiff(s)v defendant(s)
    • Counterclaim defendant v plaintiff
    • Cross claims plaintiff v plaintiff or defendant v defendant
    • Break eack claim into the necessary elements necessary to prove the case.
  7.  List of unanswered questions
    •  List of information we need to know
    • "Assigned to" list

    ****** make sure that the list is reviewed by atty and even forwarded by the atty so you are not stepping on atty toes
  8. Scheduling interview
    • Do a conflict check
    • Schedule appt
    • Check atty calendar first
    • Get list of dates from client
    • Send a confirming letter to client with map and floor plan
    • Do a confirmation call the day before
    • Book a conference or meeting room
  9.  Interview questionaire
    • Dont reinvent the wheel, there is probably one already created
    • Use forms and checklists
    • Gather background information
    • Determine specidic facts (needed to prove the elements needed for cause of action)
    • Prepare forms/releases that client needs to sign
    • Check things off the list once they are recieved or complete
    • Prepare a list of documents that will be required and send a letter confirming docs needed (paper trail avoids malpractice)
    • Ask about prior litigation - injury may be pre existing condition
  10.  Paralegal role
    • Be present at initial interview
    • Team approach to case
    • Introduce yourself as a paralegal
    • Take good notes while atty reflects back to client
    • Check dates for statute of limitations
    • Politely ask to repeat information
    • Prepare a checklist and confirmation letter (detail out what the client needs to do)
    • Encourage the client to keep medical diary and explain the importance and connection to the bottom line (if this pertains)
    • "Train the client"
    • Proofreading is one of the greatest skills
  11. Train the client
    • Communicate on behalf of the atty what is going on.
    • Dont let them guess, not knowing creates negativity
  12. Summarize the interview
    • Promptly summarize the interview so it is as accurate and you arent relying on your memory
    • Use the clients own words and dialect as much as possible
    • Create a to do list and note who is responsible
  13. Preserving evidence
    • Witness statements
    • Page 100
    • Traditional resources
    • Utilities
    • CCAP
    • Have a professional membership
    • Page 101
    • Locate the agent of a corporation through
    • Legal documents must be served to registered agent... not the headquarters
  14. Techniques for interviewing FACT witnesses

    Witness statements are sworn statements

    • Ask if they have given any other statements
    • Watch body language
    • Change of story
    • Sweating
    • Eye contact
    • Fidgety
    • Ask open ended questions "tell me what happened...."
    • Close ended questions: "yes or no"
    • Leading questions "isn't it true that..."
    • Cant ask your own witness or expert leading questions ( something to watch for at the trial you watch)
    • Hypothetical questions - if ------ then -----?
  15.  Expert witnesses
    • Education
    • Training
    • Experience

    • When finding an expert, consider: specialty.
    • Research and have some knowledge about the topic
    • Provide a summary of info to atty
    • If they won't testify ask if they have a referral or if you can still use information from them, like an article they wrote
    • Ask them who's THE guy that knows the most
    • Make sure he expert can bring it to the jury in an understandable way.

    "Dr do you have an opinion to a reasonable degree of medical certainty?"
  16. Interviews
    • Select a safe and convenient place in public, courthouse, library
    • Be non judgemental and impartial
    • If you say one hour, make it one hour
    • Need to have permission to record - often they dont want to
    • Recording allows more opportunity to observe the witness
    • Be sure to note non verbal and verbal responses?
    • Did they have a difficult time hearing or understanding the questions?
    • Was there a language barrier?
    • Were there gender differences?
    • Typically type the statement and print it right there in the office.
    • Have them read it and sign it