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1

The client interview affords the paralegal the opportunity to become an integral part of the litigation team. Although the attorney normally conducts an initial interview, a paralegal often plays an important role in the process. You may be asked to take various levels of responsibility for the interview, including:

1. researching potential causes of action or defenses
2. scheduling the interview,
3. developing an interview questionnaire or form to fit the particular case,
4. gathering forms and documents the client will have to sign,
5. taking notes during the interview, and
6. producing a summary of the interview

2

representation letter

a letter from an attorney to a new client establishing the ground rules of the litigation, including fees, billing rates, retainer, and work to be performed by the law firm

3

retainer agreement

an agreement between an attorney and a client setting forth the fee arrangements and details of the attorney's obligations

4

release

giving up a claim or right to sue

5

authorization

a signed statement empowering someone (such as a doctor or employer) to give out information that might otherwise be treated as confidential

6

Gathering Forms and Documents for Client Signature

Prior to the actual interview, you should locate copies of all forms that the client might need to sign. The first form to be filled out is the representation letter or retainer agreement, which establishes the ground rules of the litigation, including fees, billing rates, retainer, and work to be performed by the law firm

7

Prior to concluding the interview, review the checklist of information that the client was asked to furnish

If any information is missing, make a written list of it and give it to the client. Be sure to calendar the file to check that you receive everything requested. In a personal injury case the client might also be asked to keep a medical diary, a document in which the client keeps track of medical treatment, daily health complaints, type and amount of medication, mileage to physicians' offices, and other related medical expenses. The client will be more receptive to keeping the journal up to date if he or she realizes that it will be used in calculating damages and evaluating the case for settlement. As the case progresses, the paralegal might periodically review the journal

8

Interview Summary

Promptly upon completion of the interview, your interview notes should be summarized in a memorandum for the attorney's review and a copy placed in the client's file. The interview summary may reveal areas that need further development, either from a legal issue or factual standpoint. You may use the form to develop a to-do list for additional investigation

9

Locating Fact Witnesses or Elusive Defendants

Sometimes, pending litigation causes potential defendants to become elusive. You may be asked to research the opposing party's address for service of process. This effort should be made early in the investigation so that it does not hamper prompt service of the complaint or petition. Numerous sources are available to help you locate any person, including potential witnesses and defendants. The client can often provide you with names and contact information for witnesses as well as for potential defendants

Today, the Internet is the obvious starting point for information unknown to the client. Several free and fee-based sites provide substantial information about individuals and businesses. Many states and local governments make public documents available through their Web sites. As a result, you can often locate business and personal information through various business and court filings as well as through real property ownership records. Nationwide telephone directories and search engines such as Google will also help you uncover information about people and businesses. Popular social networks also help you locate people and businesses.

Fee-based online legal research databases such as Westlaw also provide numerous sources that are helpful in locating individuals and businesses. You can also search for information related to judges, attorneys, and experts who might be involved in the case, as well as information about you client (there is a good chance that the opposing side will seek information about your client)

10

Steps for Locating the Agent of Corporations or Partnerships

You will need the legal name of the company and the name and address of the party who should be served with the suit. The individual is known as the agent for service of process. If the defendant is a corporation, this information is available from the secretary of state's office and may be obtained by telephone or use of a research database, such as Lexis or Westlaw. Other services on the Internet also provide this information. In many jurisdictions, the secretary of state has an online home page, making this information readily available. In some states, if a defendant is a partnership or limited partnership, this information may be available from the secretary of state's office; in other states this information may be filed in the county recorder's office in the county where the partnership has its principal place of business. This information should be obtained early in the investigative stage of the lawsuit

11

Techniques for Interviewing Fact Witnesses

Even if the statement is tape-recorded, you should take written notes in case the tape player malfunctions. Once the interview has been completed, a typed witness statement should be prepared, either from the recorded interview or from your written notes or statement. This typewritten statement can then be transmitted to the witness for review and signing. Never tape-record a witness's statement, in person or over the phone, without the witness's knowledge and permission. In some jurisdictions this is a crime

12

When asking questions, avoid leading questions

A leading question is a question that suggests the answer. A witness should be encouraged to tell a story in his or her own words. Avoid the appearance of rushing the narrative or reacting to the story as it unfolds. Thoroughness is critical in a witness interview. Failure to be thorough can result in a witness's changing or adding to his or her testimony at the time of trial or deposition

13

Keep in mind that the rules of evidence generally do not allow an attorney to introduce a written statement at trial unless the witness is present in court and testifies in person

If a witness is unavailable at the time of trial, there is, however, a way of presenting that testimony to the court. A formal deposition can be taken. At the time of the interview, therefore, you should determine whether the interviewee would be willing to testify at trial. You should also ask whether the witness plans to leave the area or might be unavailable at the time of trial for some other reason. The attorney can then take steps to legally preserve his or her testimony for trial.

When the interview concludes, prepare a narrative summary of the interview. This summary is then presented to the witness to read and sign, verifying its accuracy. Though a signed statement is not admissible as evidence at trial, even if it is signed under penalty of perjury, it can be used to attack a witness's credibility if the witness changes his or her testimony

14

Evidence

Proper investigation of any case requires a basic understanding of certain rules of evidence (either state or federal rules, depending on the court in which the matter is filed). These rules ultimately determine what information can be used at trial. Investigation of a case requires the paralegal to obtain information that will be admissible at trial. This does not mean, however, that an investigator should ignore inadmissible evidence; such evidence might lead to other important and admissible evidence

15

Direct Evidence versus Circumstantial Evidence

Evidence may be either direct or circumstantial. Direct evidence is evidence that a witness personally observed, and which, if believed, directly establishes a fact. For example, consider the following situation. Pederson and Denton are involved in an intersection automobile accident. Waters, a fact witness, might testify that he personally observed Denton enter the intersection without stopping for a stop sign. This is direct evidence of the fact that Denton was at fault for the accident. Circumstantial evidence is evidence that does not directly establish a disputed fact. This type of evidence, however, often leads a judge or jury to infer a particular conclusion about the disputed facts. For example, in the case of Pederson and Denton, the witness might not have observed Pederson for sufficient time to have judged his speed. However evidence might be introduced that skid marks left by Pederson indicate he was traveling in excess of the posted speed limit. A jury could draw an inference that Pederson's speed may have contributed to the accident. Both direct and circumstantial evidence are important in proving your client's case

16

Forms of Evidence

Presumptions and judicial notice are referred to as forms of evidence because they are ways that attorneys have of proving a point. However, they are very different from the forms of evidence that we see or hear. In a sense, these are legal ways of proving points without testimony or physical evidence. A "presumption" is a rule of law that allows the trier of fact to draw inference-because one fact has been established by traditional evidence another fact also exists. For example, in many jurisdictions, if a party can prove that a letter was mailed, the jury can draw an inference (presume) that it was received. It is important to remember, however, that many presumptions can be rebutted or disproved by other evidence

17

Judicial notice

"Judicial notice" allows a court to find that certain facts are true without the parties presenting evidence of the fact. Courts take judicial notice of facts that are commonly known or accepted. According to Federal Rules of Evidence, Rule 201, a court can take judicial notice of a fact not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

18

Electronically stored information (ESI)

Recently, the courts (and the Federal Rules of Civil Procedure) have specifically identified electronically stored information (ESI) as a form of evidence. Electronically stored information includes documents created on computers, e-mails, Web pages, and any other form of electronically created or stored information

To determine whether a particular piece of evidence, verbal or written, is admissible requires knowledge of the appropriate rules of evidence

19

Federal Rules of Evidence

The Federal Rules of Evidence govern the admissibility of evidence in civil and criminal cases in federal court. Although these rules do not apply in state courts, many states have patterned their state evidence rules after the Federal Rules of Evidence. The purposes of the Federal Rules of Evidence are set out in Rule 102: "These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination." A complete discussion of the rules of evidence and exceptions is impossible within this chapter or even this book. You will be introduced only to the general principles of the rules of evidence, including an overview of some specific rules of evidence that commonly affect litigation

20

Relevancy

To be admissible, evidence must be "relevant." Rule 401 states that "Evidence is relevant if (a) it has any tendency to make any fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action." No one piece of evidence need be sufficient in itself to persuade the judge or jury that a particular fact is true. It must only support the existence of the particular fact. In determining relevancy, a question often arises regarding background facts that may be necessary or helpful in understanding the ultimate disputed fact.

21

The following facts generally are found to be irrelevant and inadmissible:

1. Subsequent remedial measures: Where an injury occurs because of some defective or dangerous property, the fact that the condition was repaired is not generally admissible
2. Offer to compromise the claim: A party's offer to settle or compromise a claim is not admissible
3. Promise to pay medical or other expenses: This is similar to a party's offer to settle and is not admissible as evidence of liability
4. Existence of liability insurance: Whether or not one has insurance is not relevant to the issue of liability or damages

22

However, not all relevant evidence is admissible evidence

Rule 402 specifically provides that relevant evidence can be made inadmissible by the United States Constitution, by any federal statute, by the Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority. As a result, there are several instances in which relevant evidence is not admissible at trial. In a civil trial, two of the most important rules affecting the admissibility of relevant evidence are Rule 403 and the hearsay rule, Rules 801-807. Rule 403 permits exclusion of relevant evidence if "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
The judge determines whether the negative aspects of the evidence outweigh its probative value

23

Evidence of Character and Habit

Rules 404 and 406 deal with the exclusion of another type of evidence that many consider relevant-character evidence. Character evidence includes testimony about a person's reputation in the community or whether the person is felt by friends and coworkers to be honest or dishonest. In a civil case, character evidence is not admissible if its purpose is to prove that an individual "acted in conformity" with his or her normal character traits on a particular occasion. Under Rule 406, evidence to establish habit-how a person responds to a particular situation-may be admissible if it develops sufficient evidence of a repeated pattern of behavior to the extent that it is an automatic response (e.g., unplugging the coffeemaker after pouring the last cup of coffee)

24

Documentary Evidence

Documentary evidence presents several evidentiary issues. Like all evidence, it must be relevant and not otherwise inadmissible (i.e., it must comply with all rules of admissibility, including the hearsay rule). In addition, before documentary evidence will be admitted, the document must be authenticated and must meet the requirements of the best evidence rule

25

Authentication

Rule 901(a) of the Federal Rules of Evidence describes the requirement of authentication (or identification) of a document. The person presenting the document as evidence must establish that the document is what it purports to be-a contract, warranty, deed, and so forth. This is called "authenticating" the document.

Many examples of methods of authentication are found in Rule 901(b), including testimony of witnesses with knowledge of the genuineness of the document, nonexpert opinion regarding handwriting, voice identification, telephone conversation, and public records or reports. For example, an individual who knew a decedent and often corresponded with him might be able to identify and authenticate a handwritten will. The witness would not have to be a handwriting expert; she would need only a basis for being able to identify the handwriting. Public records may be authenticated through testimony of an employee of the public office that the document in fact came from that office. Because of its nature, electronic evidence presents potential problems with authenticity. However, it is subject to the same rules as any type of evidence

26

Self-Authentication

Rule 902 of the Federal Rules of Evidence permits self-authentication of certain documents without the required testimony of a witness to establish that authenticity. The following types of documents can usually be introduced without any testimony or other evidence showing authenticity:
-public documents,
-certified copies of public records,
-official (government) publications,
-newspapers and periodicals,
-trade inscriptions,
-acknowledged (notarized) documents, and
-commercial paper and related documents

Remember, however, that just because a document is properly authenticated does not mean that the document is admissible. It must satisfy all the conditions of admissibility

27

Best Evidence Rule

At one time, the best evidence rule provided that, in trial, parties had to present the original of any document rather than a copy, unless the original was unavailable. Although the Federal Rules of Evidence do have a rule requiring the original document (Rule 1002), this rule is qualified and parties are often allowed to use copies rather than originals of documents. Unless there is a question regarding the genuineness of the document or unless introduction of a copy would be unfair, the original of the document is not required (Rule 1003). In addition, even when the genuineness is in issue, a copy might be introduced in some situations such as when the original is unavailable or has been destroyed (Rule 1004). As a litigation paralegal, you should take particular care to obtain and safeguard original documents

28

Scientific Evidence and Expert Witnesses

Scientific evidence plays an important role in many lawsuits. For many years the test of admissibility was whether the evidence was based on established legal principles that were generally accepted within the scientific community. This test stemmed from a 1923 appellate case, "Frye v. United States." In 1933, in "Daubert v. Merrell Dow Pharmaceuticals, Inc."
the United States Supreme Court interpreted Federal Rule of Evidence 702 and established a different test for the admissibility of scientific evidence, stating:

""General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence-especially Rule 702-do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands."

29

Rule 702 allows an expert to testify as to scientific evidence when:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case

Before allowing an expert to present scientific evidence, the trial court may hold a prior hearing to determine if the requirements of Rule 702 are met

30

Hearsay

One of the most involved rules of evidence is the hearsay rule. Hearsay is generally defined as an out-of-court statement introduced in court and offered to prove the truth of the statement made. It is generally a statement made by someone other than the person actually testifying in court. Hearsay includes documents as well as oral statements. The hearsay rules are complex but basically provide that a hearsay statement is not admissible as evidence unless it meets one of the stated exceptions to the rule. The hearsay rule and its numerous exceptions are found in Rules 801-807 of the Federal Rules of Evidence. The underlying principle in attempting to exclude hearsay is to further the underlying role of evidence-to ensure truthful testimony at trial. In the courtroom, the attorneys for all parties have the opportunity to examine and cross-examine. Hearsay testimony does not afford that opportunity and creates an atmosphere of unfairness. On the other hand, the various exceptions to the hearsay rule include situations where truthfulness is likely to be present