Civil Litigation Chapter 4
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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
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
Steps of case analysis
- Cast of characters
- Issues list
- List of unanswered questions
- Schedule interview between client and atty
- Interview questionaire
Cast of characters
- Could be:
- Key documents
- Physical evidence
Facts in order of occurrence
Use the symbol of a question mark in your notes to signify the unknown
Sources of fact
- 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.
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
- 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
- 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
- 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
Train the client
- Communicate on behalf of the atty what is going on.
- Dont let them guess, not knowing creates negativity
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
- Witness statements
- Page 100
- Traditional resources
- Have a professional membership
- Page 101
- Locate the agent of a corporation through www.wdfi.org
- Legal documents must be served to registered agent... not the headquarters
Techniques for interviewing FACT witnesses
FIRST QUESTION IS ALWAYS:Are you represented BY LEGAL COUNSEL?
Witness statements are sworn statements
- Ask if they have given any other statements
- Watch body language
- Change of story
- Eye contact
- 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 -----?
- 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?"
- 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
What would you like to do?
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