1. Civil Litigation:
Process and Procedures
Chapter Seven
Client Interviews and Investigation
in Civil Litigation

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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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30. Timelines
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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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.
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32. FOIA
Request
Form
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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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.
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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