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Semelhante a Chapter 7 seven interviews civ lit 2nd (6)
Chapter 7 seven interviews civ lit 2nd
- 2. What Constitutes an Interview
Typical paralegal/client contact
Screening
Initial contact
In-depth initial fact-gathering
Provides an early opportunity to
assess the client
How will they appear to a jury?
Begin preparing the client for future
interviews
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2
- 3. Implied
Attorney/Client Relationship
May result when a prospective client
divulges confidential information for the
purpose of retaining the attorney
Extends to the paralegal, as the
attorney’s agent
Not dependent on eventual
representation
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 3
- 4. The Screening Interview
Determine the referring source
Must avoid collecting too much
confidential information until the
attorney and client enter a
representation agreement
Must collect enough to do a conflicts
check and for the attorney to determine
whether the firm will take the case
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 4
- 5. Written
Representation Agreement
Attorney determines there is a valid claim
and the firm can accept the client
The client understands the terms and
retains the firm
The terms of representation are set out
Scope of representation
Fees
Non-representation should be set out in
writing, too
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 5
- 6. Contingent Fee Agreements
A written contract
Sets out the percentage of the judgment
due to the attorney
Identifies the expenses & costs that will be
owed, regardless of the outcome of the
case
May address issues of collection, structured
settlements, etc.
Signed by both parties
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 6
- 7. Case Organization
One method includes analysis of
Cast of characters – who is involved, what
role do they play?
Chronology – enter important events along
a time-line, including conflicting versions
Issue list – legal claims and critical factual
disputes
Question list – a running list of questions
that arise during the analysis
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 7
- 8. Preparing for the Interview
Review available materials, understand
the desired outcome
Obtain relevant facts
Instill the client with confidence
Prepare the environment, addressing
Location – prevent distractions
Attire & appearance
Cultural issues
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 8
- 9. Interview Checklists
A fail-safe mechanism, not a script
Prevents accidental omission of
important information
Provides the foundation for a more
detailed interview plan
Available for different types of litigation
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 9
- 10. Interview Setting
Varies in response to the interviewee
Formal appropriate in some instances –
from a desk in an office
Informal, in some cases, to put the client
or witness at ease
Always maintaining a professional,
competent demeanor
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 10
- 11. Dress and Appearance
First impressions count
The “corporate culture” of your firm will
help determine your dress
Is there a difference between “every day” and
“meeting with a client” attire?
Is there a “casual” day?
Does the client or witness have religious or
cultural issues, and can you increase his or her
comfort level?
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 11
- 12. Gender Differences
Avoid stereotyping
Appreciate individual differences
Consider the receiver’s attitudes about the paralegal
Man-to-man – may afford instant credibility
Woman-to-woman – may afford credibility, expect a
more nurturing individual
Paralegal man to woman – may expect him not to
really listen to her
Paralegal woman to man – may expect nurturing, be
uncomfortable with aggression, or just ignore her
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 12
- 13. Ethnic Differences
Avoid stereotyping
Learn a little about greetings &
communication issues, specific to their
cultural background
Be aware of body language, such as
eye contact
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 13
- 14. Ethical Obligation
A paralegal must
Disclose his or her status in any interview
Explain what a paralegal can & can’t do to
those who are not familiar with the
profession
Guard against UPL
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 14
- 15. Building a Relationship
Take care of the interview details, such as
time & location, efficiently
Appear professional
Explain the reason for the interview, and
your role as a paralegal
Appreciate the stress level of the
interviewee
Read body language to determine the
comfort level
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 15
- 16. Listening Skills
Focus on the answer to the question you just
asked, not the next question
Adjust your position & tempo to the
interviewee’s responses
Understand the type of witness you are
interviewing: friendly, hostile, expert, etc.
Listen in a nonjudgmental, impartial manner
Be alert for intentional misinformation
(intended to either please or confuse you)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 16
- 17. More Listening Skills
Do not make assumptions about the case –
let the witness tell you what he or she thinks
Observe language difficulties, and adjust
accordingly – ask for clarification if unsure
Empathize, while remaining professional
Don’t interrupt or antagonize the speaker –
control any angry responses
Don’t argue, even mentally
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 17
- 18. Question Modes
Open-ended or narrative – allows
interviewees to tell their stories
(“Describe the car.”)
Closed-ended – seeks a single detail
(“What color was the car?”)
Leading – suggests the desired or
expected answer (“The car was blue,
wasn’t it?”)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 18
- 19. Interview Questions
Open-ended prevent cutting off information
that you have not anticipated, which may be
vital to your case, and make good initial
questions
Closed-ended are good follow-up questions,
picking up details that may have been
missed
Leading questions may taint the witness’s
memory, and are best left to the attorney
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 19
- 20. Privileged Communications
Evidentiary rule that protects some
types of information from being used at
trial
Privileges may include
Attorney/client
Doctor/patient
Priest/penitent
Spousal communications during marriage
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 20
- 21. Waiver and Exceptions
The attorney/client privilege belongs to the
client, who may waive it
Different rules exist permitting information to be
revealed in the interest of preventing a great
harm
Applies to attorney agents, as well as attorneys
Is destroyed if a disinterested third party is
present at the time and, with the client’s
knowledge, is allowed to hear the information
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 21
- 22. Moral vs. Ethical Obligations
Moral obligations are based on one’s
own conscience, or community
standards of conduct (not law)
Ethical obligations are the
responsibilities of the legal profession
under that state’s professional conduct
rules or code
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 22
- 23. Expert Witnesses
Used to evaluate evidence for case
development
Used to testify in court
Gives opinion evidence based on a set
of facts or an examination of physical
evidence
Qualified by their background,
education, and/or experience
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 23
- 24. Expert Witness/Privilege
Anything revealed to an expert who is
listed as a trial witness is discoverable
Other information given to experts, not
called as witnesses, is not clearly
protected, since they are their parties,
not a part of the legal team, but may be
found to be privileged in some
instances
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 24
- 25. Deposing Expert Witnesses
What opinion have you formed?
What led you to that opinion?
How & why did you do that & what didn’t you
do?
What results did you get: how did they affect
your opinion?
What assumptions did you make?
Are there reliable authorities in this field, & is
this your current & accurate résumé?
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 25
- 26. Investigating Claims
To determine whether to proceed in a
legal matter, the legal team should
Gather all available, relevant documents
Interview client
Research the law for the legal basis of the
claims; anticipate legal defenses
Prepare an investigation plan, identifying
witnesses & evidence needed to support the
claim
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 26
- 27. Obtain Official Reports
Police accident or incident report
Emergency medical services report
Fire department call report
Incident reports of safety violations by
federal, state or local authorities
May be a means to determine
Time & place
Names of witnesses
Diagrams & photos
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 27
- 28. Fact Analysis –
Field Investigation
Verification of the location
Description from different perspectives
Examine with an impartial, neutral point
of view – no familiarity
Photographs, including satellite photos
Compare & contrast before & after
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 28
- 29. Tangible Evidence
Physical objects must be preserved
Chain of custody
Controlled samples, testing
Failure to preserve can result in spoliation,
based on
Degree of fault of the party who altered or
destroyed evidence
Adverse affect on opposing party
Sanctions designed to protect the injured party’s
rights, deter future spoliation
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 29
- 31. Freedom of Information Act
FOIA – a federal statute designed to make
government information available to the public (5
U.S.C. 552)
Exceptions include documents concerning
Classified defense & foreign policy
Personnel rules & practices, medical files
Patent applications, trade secrets & tax returns
Law-enforcement investigations
Financial institution records
Some geological & geophysical information
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 31
- 32. FOIA
Request
Form
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 32
- 33. Locating Witnesses
Directories
Standard telephone
Cross-reference, or “criss-cross”
Trade organization & and professional
group
Educational institutions
The web, via search engines or
professional site (e.g., Martindale.com)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 33
- 34. Common Sense Analysis
Jurors’ perspective – logical timeline,
common sense explanations are easy to
grasp
Presenting a case that seems
improbable but is nonetheless
consistent with investigation findings
requires more care
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 34