Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Interviewing & Investigation LAW-123 Introduction to Interviewing and Investigating

Investigation Investigation is the process by which attorneys and their assistants gather relevant information from a variety of private and public sources in order to successfully represent their clients. Investigation is the process by which attorneys and their assistants gather relevant information from a variety of private and public sources in order to successfully represent their clients.

Interviewing The ability to effectively interview clients, potential witnesses, and other persons who may have helpful information is a critical part of the investigation process. The ability to effectively interview clients, potential witnesses, and other persons who may have helpful information is a critical part of the investigation process.

Relationship Between Law and Fact Interviewing and Investigating are the means by which lawyers identify and gather facts that will control the law of the case. Interviewing and Investigating are the means by which lawyers identify and gather facts that will control the law of the case. Legal Research is the process by which lawyers find the law applicable to the legal issues in the case. Legal Research is the process by which lawyers find the law applicable to the legal issues in the case.

Factual Analysis A critical thinking skill A critical thinking skill Three steps involved in process: Three steps involved in process: 1. Comprehension of law and facts discovered 2. Evaluation – careful examination of facts for reliability 3. Application of relevant facts to legal issues

Why Evaluation is Necessary Lie Lie Tell half-truths Tell half-truths Are mistaken Are mistaken Guess Guess Forget or misremember Forget or misremember Make assumptions Make assumptions Jump to conclusions Jump to conclusions Allow prejudices to color facts Allow prejudices to color facts Have only second or third hand knowledge Have only second or third hand knowledge Confuse their opinions with facts Confuse their opinions with facts Are reluctant to tell what they know Are reluctant to tell what they know Perceive events and describe them differently than others Perceive events and describe them differently than others Sometimes, Clients or Witnesses:

How to Evaluate Facts Determine if sources are competent, honest, reliable, and objective Determine if sources are competent, honest, reliable, and objective Filter out opinions, assumptions, and prejudices Filter out opinions, assumptions, and prejudices Distinguish between first and second or third hand information Distinguish between first and second or third hand information Verify information by independent corroboration Verify information by independent corroboration Seek details and leads to other information Seek details and leads to other information Seek clarification of confusing or incomplete information Seek clarification of confusing or incomplete information Compare facts Compare facts Look for contradictions and inconsistencies Look for contradictions and inconsistencies Look for gaps and seek to fill them Look for gaps and seek to fill them Draw reasonable inferences but seek confirmation Draw reasonable inferences but seek confirmation Resist the urge to jump to conclusions and seek hard evidence Resist the urge to jump to conclusions and seek hard evidence

Investigation in Civil Litigation Purposes for Plaintiff are to determine: Purposes for Plaintiff are to determine: If Client has a valid and timely cause of action If Client has a valid and timely cause of action The relative strength of Client’s case The relative strength of Client’s case Any defenses to Client’s cause of action Any defenses to Client’s cause of action Identity of Defendants to Client’s cause of action and whether they are “judgment proof” Identity of Defendants to Client’s cause of action and whether they are “judgment proof” The likelihood of counterclaims against Client The likelihood of counterclaims against Client The identity of potential witnesses The identity of potential witnesses The existence and value of documentation and physical evidence relevant to Client’s case The existence and value of documentation and physical evidence relevant to Client’s case

Investigation in Civil Litigation Purposes for Defendant are to determine: Purposes for Defendant are to determine: How to answer the complaint (i.e., admit or deny facts) and what motions are advisable How to answer the complaint (i.e., admit or deny facts) and what motions are advisable Whether factual or affirmative defenses are available Whether factual or affirmative defenses are available Whether a counterclaim against Plaintiff or cross-claim against third party exists Whether a counterclaim against Plaintiff or cross-claim against third party exists The relative strength of Defendant’s case The relative strength of Defendant’s case What alternative strategies may be advisable (e.g., settlement) What alternative strategies may be advisable (e.g., settlement)

Investigation in Criminal Litigation Purposes for Defendant are to determine: Purposes for Defendant are to determine: Evaluate government’s charges against Client Evaluate government’s charges against Client Advise Client how to plead, and whether to defend or plea bargain Advise Client how to plead, and whether to defend or plea bargain Prepare defense for trial Prepare defense for trial

Investigation in Other Legal Representation Purposes are to determine: Purposes are to determine: What options are available to Client based on facts What options are available to Client based on facts What the risks and benefits are for Client re: each option What the risks and benefits are for Client re: each option Favorability to Client of one option over others Favorability to Client of one option over others How to assemble information to accomplish the selected goal(s) How to assemble information to accomplish the selected goal(s)

Related Skills and Areas of Knowledge Substantive Law Substantive Law E.g., Constitutional Law, Contracts, Agency, Torts, Criminal, Property E.g., Constitutional Law, Contracts, Agency, Torts, Criminal, Property Essential in order to: Essential in order to: Understand reason and purposes for investigation in a particular case Understand reason and purposes for investigation in a particular case Plan the investigation Plan the investigation Identify all sources of information Identify all sources of information

Related Skills and Areas of Knowledge Legal Research and Writing Legal Research and Writing Must be able to locate and understand the law, and apply the facts to it Must be able to locate and understand the law, and apply the facts to it Rules of Evidence Rules of Evidence Must know both what evidence to pursue, and what form it must be in to be admissible Must know both what evidence to pursue, and what form it must be in to be admissible

Related Skills and Areas of Knowledge Rules of Procedure Rules of Procedure E.g., Civil Procedure, Criminal Procedure E.g., Civil Procedure, Criminal Procedure Must know rules that govern the proceeding, and procedures for formal discovery Must know rules that govern the proceeding, and procedures for formal discovery Legal Ethics Legal Ethics E.g., Rules of Professional Conduct E.g., Rules of Professional Conduct Must know and comply with the rules that govern the Attorney Must know and comply with the rules that govern the Attorney Client confidentiality, conflicts of interest, unauthorized practice of law, parties represented by counsel, duty of competence, handling of client funds Client confidentiality, conflicts of interest, unauthorized practice of law, parties represented by counsel, duty of competence, handling of client funds

Definition of Paralegal A person who: A person who: Is qualified by education, training, or work experience Is qualified by education, training, or work experience Is employed or retained by a lawyer, law office, corporation, government agency, or other entity Is employed or retained by a lawyer, law office, corporation, government agency, or other entity Performs specifically delegated substantive legal work for which a lawyer is responsible Performs specifically delegated substantive legal work for which a lawyer is responsible

The Paralegal As Agent As an Agent of the Attorney and a Subagent of the Client, the Paralegal’s employment has several ramifications: As an Agent of the Attorney and a Subagent of the Client, the Paralegal’s employment has several ramifications: The Paralegal’s actions may be legally binding on the Attorney and Client The Paralegal’s actions may be legally binding on the Attorney and Client The Attorney may be liable for damages to others by the Paralegal The Attorney may be liable for damages to others by the Paralegal The Attorney may be sanctioned for actions of the Paralegal The Attorney may be sanctioned for actions of the Paralegal

Attorney Expectations of Paralegals Willingness to take direction Willingness to take direction Initiative to clarify assignments Initiative to clarify assignments Judgment Judgment Discipline to keep Attorney informed Discipline to keep Attorney informed Ability to work under pressure Ability to work under pressure Communication and people skills Communication and people skills Objectivity Objectivity Thoroughness Thoroughness Creativity Creativity Interviewing and investigating skills Interviewing and investigating skills

Structure of the Course Basics of Communications Theory Basics of Communications Theory Applying Communications Theory to a Three-Staged Interview Process Applying Communications Theory to a Three-Staged Interview Process Rules of Evidence and Discovery Rules of Evidence and Discovery Sources of information Sources of information Developing and executing an Investigation Plan Developing and executing an Investigation Plan

End of to Introduction to Interviewing and Investigating End of to Introduction to Interviewing and Investigating