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Interviewing and Investigating: Essential Skills for the Legal Professional 6th ed. [Pehme köide]

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Stephen P Parsons

Formaat: Paperback / softback, 656 pages, kõrgus x laius x paksus: 251x178x33 mm, kaal: 975 g
Sari: Aspen College
Ilmumisaeg: 16-Sep-2016
Kirjastus: Aspen Publishers Inc.,U.S.
ISBN-10: 1454873469
ISBN-13: 9781454873464

Teised raamatud teemal:

Legal profession: general - (Hetkel poes: 1 nimetust)
Paralegals & paralegalism

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Formaat: Paperback / softback, 656 pages, kõrgus x laius x paksus: 251x178x33 mm, kaal: 975 g
Sari: Aspen College
Ilmumisaeg: 16-Sep-2016
Kirjastus: Aspen Publishers Inc.,U.S.
ISBN-10: 1454873469
ISBN-13: 9781454873464

Teised raamatud teemal:

Legal profession: general - (Hetkel poes: 1 nimetust)
Paralegals & paralegalism

Püsilink: https://www.kriso.ee/db/9781454873464.html

Märksõnad:

Interviewing and Investigating: Essential Skills for the Legal Professional, 6E reflects a thorough and practical approach, for a strong foundation in interviewing and investigating, as well as in the civil, criminal, and non-litigation contexts in which they are used. This comprehensive text uses realistic case scenarios, practical exercises, illustrations, and examples to teach the essential skills of interviewing and investigating, helping students to master rather than memorize the skills. Led by an experienced practitioner and author, readers will make connections between law and fact, engage in critical analysis, and develop
specific communication skills that are indispensable in practice.

Key Features:

Summaries of newly decided cases involving attorney-client privilege and the use of social media to communicate.
References to the Federal Rules of Civil Procedure in Chapters 3 and 4 revised to reflect December 2015 amendments, including:
- FRCP 26(c)(1)(B): cost shifting in connection with a motion for protective order during discovery
- FRCP 37(e): national standard for imposition of sanctions for spoliation of ESI
- FRCP 16(b)(3):judicial input on certain e-discovery issues at the outset of a case.
- References to Federal Rules of Evidence 801(d)(1)(B) and 803(6)(7)(8) updated and new examples added.
- New section on the confrontation clause.
- All websites updated and new sites added.
- Discussions of e-discovery updated to reflect the latest developments in online social networking and technology.
- In updated case studies, social media plays a significant role in the characters’ lives—sometimes to their detriment.
- Expansion of the treatment of public records and the explanation of what state public records acts cover and how to access them.
- Refreshed instructor’s manual providing a sample syllabus, suggested approaches to using the various pedagogical features in the text, instructions and evaluation form for persons roleplaying as witnesses, and a complete test bank with answers.

List of Illustrations

xxxiii

Preface

xxxvii

Acknowledgments

xliii

Part 1 Foundations for Interviewing and Investigating

(260)

Chapter 1 Introduction to Interviewing and Investigating

(20)

A Why These Skills Are Important to the Lawyer

(10)

1 The relationship between law and fact

(1)

2 Factual analysis

(1)

a Comprehension

(1)

b Evaluation

(2)

c Application

(1)

3 The role of factual investigation in civil litigation

(1)

a By the attorney for the plaintiff

(1)

b By the attorney for the defendant

(1)

4 The role of factual investigation in criminal litigation

(1)

5 The role of factual investigation in other legal representation

(1)

B Other Skills and Areas of Knowledge Related to Interviewing and Investigating

(2)

1 Substantive law

(1)

2 Legal research and writing

(1)

3 Rules of evidence

(1)

4 The adversarial system and rules of procedure

(1)

5 Ethics and professional responsibility

(1)

C The Lawyer's Use of Paralegals in Interviewing and Investigating

(8)

1 Lawyers using paralegals

(1)

2 Definition of a paralegal

(1)

3 The paralegal as an agent of the attorney

(1)

a The actions of the paralegal may be legally binding on the attorney and the client

(1)

b The attorney may be liable for damages caused to another by the paralegal

(1)

c The attorney may be sanctioned for actions of the paralegal

(1)

4 Paralegals as licensed private investigators

(1)

5 What attorneys expect from paralegals

(1)

a The willingness to work under the supervision of the attorney

(1)

b The initiative to clarify assignments

(1)

c Good judgment

(1)

d The discipline to keep the supervising attorney well advised

(1)

e The ability to work well under pressure

(1)

f Good communication and people skills

(1)

g Objectivity

(1)

h Thoroughness

(1)

i Creativity

(1)

j Sound interviewing and investigating skills

(1)

Chapter Summary and Conclusion

(1)

Review Questions

(1)

Key Words and Phrases to Remember

(1)

Learn by Doing

(1)

Chapter 2 Ethical and Professional Responsibilities for Legal Professionals Engaged in Interviewing and Investigating

(28)

A Sources of Ethical and Professional Responsibility

(2)

1 State statutes which prohibit the unauthorized practice of law (UPL)

(1)

2 Mandatory ethical rules governing attorneys

(1)

3 Ethical rules promulgated for the paralegal

(1)

4 Guidelines for attorneys and paralegals working together in the law office

(1)

5 Advisory ethical opinions

(1)

B Consequences of Unethical Conduct

(3)

1 To the lawyer

(1)

a The lawyer may be fired by the client

(1)

b The lawyer may be sued by the client damaged by the unethical behavior

(1)

c The lawyer may be sanctioned

(1)

d The lawyer may face criminal prosecution

(1)

e The lawyer's reputation may be damaged

(1)

2 To the paralegal

(1)

a The paralegal may lose his or her job

(1)

b The paralegal may lose his or her certification

(1)

c The paralegal may lose his or her right to appear before administrative agencies

(1)

d The paralegal may be sued by the client damaged by the unethical action

(1)

e The paralegal may be subject to criminal prosecution

(1)

f The paralegal's reputation may be tarnished

(1)

C Specific Ethical and Professional Concerns for Legal Professionals Engaged in Interviewing and Investigating

(22)

1 The unauthorized practice of law

(1)

a Establishing an attorney-client relationship

(1)

b Setting legal fees

(1)

c Giving legal opinions or legal advice

(2)

d Representing a client before a court or tribunal

(1)

e Negotiating a legal matter on behalf of a client

(1)

f Delegable tasks and the attorney's responsibility to avoid an agent's UPL

(1)

2 Maintaining client confidences and secrets

(1)

a The attorney-client privilege

(1)

b The broader ethical duty of confidentiality

(1)

c Protecting client information from disclosure

(3)

3 Competence

(1)

a Seek good education and training

(1)

b Seek certification

(1)

c Stay informed concerning changes in the law and the profession

(1)

d Stay on the cutting edge of technological advancements

(1)

e Commit yourself to excellence

(1)

4 Integrity

(1)

a Truthfulness in dealing with clients, co-workers, and others

(1)

b Fidelity in handling client funds and other property

(1)

c Loyalty

(1)

5 Diligence and communication with the client

(1)

6 Conflicts of interest

(1)

a Simultaneous representation

(1)

b Representing an interest adverse to a former client

(1)

(1) Before accepting representation

(1)

(2) After representation has begun

(1)

(3) Job changes

(1)

(4) Personal relationships

(1)

(5) Recognizing potential conflicts

(1)

7 Disclosure of status in verbal and written communications

(1)

8 Improper communications

(1)

9 Discovery of client misconduct

(1)

a Intent of the client to commit a criminal act

(1)

b Fraudulent claim or malicious harassment

(1)

c Commission of fraud on the court or perjury

(1)

Chapter Summary and Conclusion

(1)

Review Questions

(1)

Key Words and Phrases to Remember

(1)

Learn by Doing

(2)

Chapter 3 The Adversarial System, ADR, and Pre-filing Investigation

(42)

A The Adversarial System

(13)

1 Civil and criminal law

(1)

2 The court systems

(1)

3 Rules of procedure

(2)

4 Rules of evidence

(1)

5 Court rules

(1)

6 The cause of action

(1)

a In a civil suit

(2)

b In a criminal prosecution

(1)

7 Remedies

(1)

a In a civil suit

(2)

b In a criminal prosecution

(1)

8 Defenses

(1)

a In a civil suit

(1)

b In a criminal prosecution

(1)

9 The burden and degree of proof

(1)

a In a civil suit

(1)

b In a criminal prosecution

(1)

10 Means of proof

(1)

11 Statutes of limitation and repose

(2)

B Administrative Procedures

(1)

C Alternative Dispute Resolution (ADR)

(2)

1 Negotiation

(1)

2 Mediation

(1)

3 Arbitration

(1)

D Distinguishing Between Formal Discovery and Informal Investigation

(3)

1 Formal discovery

(1)

2 Informal investigation

(1)

3 The advantages of informal investigation

(1)

a Early investigation produces more information

(1)

b Information located early is more reliable

(1)

c Information sought informally is more easily obtained

(1)

d Information sought informally is less expensive

(1)

e No opposing party is present for informal investigation

(1)

f The first side to locate relevant information gains advantages in litigation

(1)

g Prompt investigation enhances settlement prospects

(1)

E Pre-Filing Procedures

(23)

1 The mandate for pre-filing investigation

(1)

2 Objectives of pre-filing investigation

(1)

a To determine if there are facts sufficient to state one or more causes of action

(1)

b To determine provable damages

(1)

c To determine if there are facts sufficient to assert a valid defense

(1)

d To satisfy special pleading requirements

(1)

e To identify all potential defendants

(2)

f To determine the assets of identified defendants

(1)

g To determine questions of personal jurisdiction

(1)

h To determine questions of subject matter jurisdiction

(4)

i To determine the proper venue for a case

(1)

j To determine questions regarding governmental immunity

(1)

k To accomplish required service of process

(7)

Chapter Summary and Conclusion

(1)

Review Questions

(1)

Key Words and Phrases to Remember

(2)

Learn by Doing

(2)

Chapter 4 Formal Discovery in Civil Litigation

(50)

A Introduction

(1)

B The Scope and Purposes of Formal Discovery in a Civil Case

(4)

1 The relationship between the scope of formal discovery and the rules of evidence

(1)

2 Privileged materials not discoverable

(1)

3 Discovery of experts

(1)

4 Required voluntary disclosures

(2)

C Methods of Formal Discovery in a Civil Case

(21)

1 Depositions (FRCP 27 through 32)

(1)

a Why lawyers take depositions

(1)

b Lawyers using assisting legal professionals in depositions

(5)

2 Interrogatories (FRCP 33)

104

(1)

a Information to be sought by interrogatories

104

(7)

b Lawyers using assisting legal professionals in discovery by interrogatories

111

(3)

3 Requests for production of documents and things (FRCP 34)

114

(2)

a Serving document requests and interrogatories together

116

(1)

b Assisting the client to locate and review documents

116

(2)

4 Requests for physical or mental examination (FRCP 35)

118

(1)

5 Request for admissions (FRCP 36)

119

(1)

D Drafting Guidelines for Discovery Documents

119

(6)

1 Identify and organize the topics to be addressed

119

(1)

2 Use clear and concise language

120

(1)

3 Be thorough

121

(1)

4 Don't be wordy

121

(1)

5 Use subparts carefully

122

(1)

6 Use definitions

122

(2)

7 Use instructions with caution

124

(1)

8 Avoid abusing discovery

124

(1)

9 Before responding to discovery requests review them carefully for objections

124

(1)

10 In responding to discovery requests, answer only what is fairly asked

125

(1)

11 Comply with all rules of procedure and local rules of court regarding discovery

125

(1)

E The Order of Discovery

125

(1)

1 Interrogatories and document requests

125

(1)

2 Depositions

125

(1)

3 Requests for physical or mental examination

125

(1)

4 Requests for admissions

126

(1)

F Discovery of Electronically Stored Information (E-discovery)

126

(17)

1 The explosion in electronically stored information (ESI)

126

(2)

2 ESI as potentially relevant evidence

128

(1)

3 The litigation hold and dangers of spoliation of evidence

128

(2)

4 Undue hardship issues in e-discovery

130

(3)

5 ESI production and waiver of attorney-client or work product privilege

133

(3)

6 Recent E-discovery amendments to the Federal Rules of Civil Procedure

136

(1)

7 Organizational recommendations, local court rules, and guidelines addressing ESI issues

137

(2)

Chapter Summary and Conclusion

139

(1)

Review Questions

139

(1)

Key Words and Phrases to Remember

140

(1)

Learn by Doing

141

(2)

Chapter 5 Formal Discovery in Criminal Litigation

143

(34)

A The Scope of Formal Discovery in Criminal Litigation

143

(1)

B Means of Formal Discovery Available to the Defense in Criminal Litigation

144

(24)

1 Review of the criminal complaint

145

(3)

2 The initial appearance

148

(3)

3 The preliminary hearing

151

(1)

a Frequently, no preliminary hearing is held

151

(1)

b There typically is little time to prepare for the preliminary hearing

151

(1)

c The prosecution need not present its entire case at the preliminary hearing

151

(1)

4 The information and the indictment

152

(4)

5 The bill of particulars

156

(1)

6 Rule 16 discovery

157

(1)

a Statements of the defendant

157

(1)

b The criminal record of the defendant

158

(1)

c Documents, electronically stored information, and things

158

(1)

d Reports of examinations and tests

159

(1)

e Expert witnesses

160

(3)

f Procedure for conducting Rule 16 discovery

163

(1)

7 Identity of witnesses

163

(1)

8 Statements of witnesses

163

(1)

9 Exculpatory material---the Brady doctrine

164

(1)

10 Depositions

164

(2)

11 Documents, records, and things from non-parties

166

(1)

12 Motions as discovery devices

166

(1)

a The motion to dismiss

166

(1)

b The motion to suppress

166

(1)

c The motion in limine

167

(1)

13 The Freedom of Information Act and the Privacy Act

167

(1)

C Means of Formal Discovery Available to the Prosecution in Criminal Litigation

168

(2)

1 The initial appearance

168

(1)

2 The preliminary hearing

168

(1)

3 Grand jury testimony

168

(1)

4 Rule 16 discovery

168

(1)

a Documents and objects

169

(1)

b Reports of examinations and tests

169

(1)

c Expert witnesses

169

(1)

5 Statements of witnesses

169

(1)

6 Prior notice of affirmative defenses

169

(1)

a Alibi witnesses

170

(1)

b Insanity defense

170

(1)

c Public authority defense

170

(1)

D The Resolution of Discovery Disputes in Criminal Litigation

170

(1)

E Lawyers Using Assisting Legal Professionals in Formal Criminal Discovery

171

(6)

1 Attendance at pretrial proceedings

171

(1)

2 Review and analysis of court filings

171

(1)

3 Drafting discovery documents and related motions

171

(1)

4 Familiarity with discovery procedures

172

(1)

5 Familiarity with forms

172

(1)

6 Reviewing documents, reports, and summaries

173

(1)

7 Assisting the client in responding to discovery requests

173

(1)

Chapter Summary and Conclusion

173

(1)

Review Questions

174

(1)

Key Words and Phrases to Remember

174

(1)

Learn by Doing

175

(2)

Chapter 6 Rules of Evidence for the Investigator---Part 1

177

(20)

A Introduction to the Rules of Evidence

178

(5)

1 What the rules of evidence do

178

(1)

2 The burden of proof

178

(1)

a In a civil case

178

(1)

b In a criminal prosecution

179

(1)

3 The standard or degree of proof

179

(1)

a In a civil case

179

(1)

b In a criminal prosecution

179

(1)

4 Means of proof

180

(1)

5 First-hand and second-hand knowledge

180

(1)

6 Direct and circumstantial evidence

181

(1)

7 Laying the foundation

181

(1)

8 Rulings on admissibility and offers of proof

182

(1)

B The Role of the Rules of Evidence in Interviewing and Investigating

183

(6)

1 Planning and carrying out effective informal investigations

183

(1)

2 Putting discovered information in admissible form

184

(1)

3 Drafting formal discovery requests and responses

185

(1)

4 Drafting affidavits or declarations for use in pretrial motions

186

(1)

5 Planning the evidence to be offered at trial

186

(3)

6 Assisting the lawyer at trial

189

(1)

C The Doctrine of Privileges

189

(8)

1 Trial preparation materials

189

(1)

2 The physician-patient privilege

190

(1)

3 The psychotherapist-patient privilege

191

(1)

4 The spousal confidential communications privilege

191

(1)

5 The spousal testimony privilege

191

(1)

6 The privilege against self-incrimination

192

(1)

7 Miscellaneous privileges

192

(1)

8 Procedural matters relating to privileges

193

(1)

Chapter Summary and Conclusion

193

(1)

Review Questions

193

(1)

Key Words and Phrases to Remember

194

(1)

Learn by Doing

195

(2)

Chapter 7 Rules of Evidence for the Investigator---Part 2

197

(38)

A Relevance

198

(1)

B Lay Witnesses

199

(1)

C Expert Witnesses

199

(1)

D Examination of Witnesses

200

(1)

E The Rule Against Hearsay

201

(16)

1 Hearsay defined

201

(1)

a Is it a statement?

201

(1)

b Is it a statement made out of court?

201

(2)

c Is it a statement offered to prove the truth of the matter asserted?

203

(2)

d Is there a recognized exemption or exception for the statement?

205

(1)

2 Admission by party opponent exemption

206

(1)

3 Prior inconsistent statement made under oath exemption

206

(1)

4 Prior consistent statement offered to rebut charge of recent fabrication exemption

207

(1)

5 Prior statement identifying a person perceived earlier exemption

208

(1)

6 FRE 803 exceptions to the hearsay rule---availability of declarant immaterial

208

(1)

a Present sense impression (FRE 803(1))

208

(1)

b Excited utterance (FRE 803(2))

209

(1)

c Current state of mind or condition (FRE 803(3))

209

(1)

d Statements made for purposes of medical diagnosis or treatment (FRE 803(4))

210

(1)

e Recorded recollection (FRE 803(5))

210

(1)

f Business records (FRE 803(6) and (7))

211

(1)

g Public records (FRE 803(8) and (10))

212

(1)

7 FRE 804 exceptions to the hearsay rule---applicable where the declarant is unavailable to testify

212

(1)

a Former sworn testimony (FRE 804(b)(1))

212

(1)

b Statement under belief of imminent death (FRE 804 (b)(2))

213

(1)

c Statement against interest (FRE 804(b)(3))

213

(1)

d Statement offered against or by one who caused or procured declarant's unavailability (FRE 804(a) and (b)(6))

214

(1)

8 The residual exception (FRE 807)

214

(1)

9 Hearsay and the Confrontation Clause

215

(2)

F Character Evidence

217

(5)

1 The criminal accused

218

(2)

2 Where character is an essential element of a claim or defense

220

(1)

3 Other crimes, wrongs, or acts

220

(1)

4 A witness's character for truthfulness

221

(1)

5 Character for truthfulness of a witness as evidenced by conviction of a felony or other crime involving dishonesty

221

(1)

G Impeaching a Witness by Showing Bias or Interest

222

(2)

H Authentication of Documents and Things

224

(2)

1 Authenticating physical objects

224

(1)

2 Authenticating demonstrative evidence

224

(1)

3 Authenticating documents

224

(1)

4 Authenticating voices

225

(1)

I Best Evidence Rule

226

(1)

J Generally Prohibited Matters

226

(3)

1 Subsequent remedial measures

226

(1)

2 Settlement discussions and offers

227

(1)

3 Paying or offering to pay expenses

228

(1)

4 Plea bargain discussions or a guilty plea later withdrawn

228

(1)

5 Liability insurance

228

(1)

6 Religious beliefs

229

(1)

K Final Considerations Regarding Evidence

229

(6)

1 Admissibility for alternative reasons

229

(1)

2 Clearing all the hurdles

230

(1)

Chapter Summary and Conclusion

230

(1)

Review Questions

231

(1)

Key Words and Phrases to Remember

232

(1)

Learn by Doing

232

(3)

Chapter 8 Communication Skills for the Investigator

235

(26)

A The Importance of Communication in the Work of Legal Professionals

236

(1)

1 How we all communicate

236

(1)

a Written communication

236

(1)

b Verbal communication

236

(1)

c Nonverbal communication

236

(1)

2 The importance of written and verbal communication

236

(1)

3 The importance of nonverbal communication

237

(1)

B Verbal Communication---It's More Than the Words

237

(5)

1 Tone of voice

238

(1)

2 Volume

238

(1)

3 Rate of speaking

238

(1)

4 Voice inflection

238

(1)

5 Enunciation

239

(1)

6 Vocabulary

239

(1)

7 Grammar

239

(1)

8 Slang, colloquialisms, idioms, and accents

240

(1)

a Slang

240

(1)

b Colloquialisms

241

(1)

c Idioms

241

(1)

d Accents

242

(1)

C Nonverbal Communication---Body Language

242

(6)

1 Body position

243

(1)

2 Facial expressions

244

(1)

3 Eye contact

245

(1)

4 Nervous signals

246

(1)

5 The sounds of silence

246

(1)

6 Clothes and environment

246

(1)

a We are all experts

247

(1)

D Written (Including Electronic) Communication

248

(5)

1 Be aware of grammar

248

(1)

2 Use tools for effective writing

248

(1)

3 Avoid slang and colloquialisms

248

(1)

4 Be precise

248

(1)

5 Be thorough but concise

248

(1)

6 Avoid repetition

248

(1)

7 Be consistent

248

(1)

8 Use shorter, simpler, non-technical words

249

(1)

9 Use paragraphs

249

(1)

10 Use drafts and proof your work

250

(1)

11 Protect confidentiality and privilege

250

(1)

12 Practice makes perfect---and reading helps too

251

(1)

13 Special considerations for electronic communications (netiquette)

251

(2)

E Putting Communication Skills to Work in Interviewing and Investigating

253

(8)

1 What are you communicating to others?

253

(1)

2 What are others communicating to you?

254

(1)

3 Suggestions for phone communications

254

(1)

a Your voice is critical

255

(1)

b Identify yourself properly

255

(1)

c Return calls promptly

255

(1)

d Sound interested---even if you're not

255

(1)

e Take notes while you talk

255

(1)

f Phone ego---"Please hold for Mr. Big"

255

(1)

g Phone conversations with information sources

255

(1)

4 The investigator as a LOvER!

256

(1)

a A Listener

256

(1)

b An Observer

256

(1)

c An Evaluator

256

(1)

d A Reporter

257

(1)

Chapter Summary and Conclusion

257

(1)

Review Questions

257

(1)

Key Words and Phrases to Remember

258

(1)

Learn by Doing

258

(3)

Part 2 Formulating and Executing a Plan of Investigation

261

(266)

Chapter 9 Formulating a Plan of Investigation

263

(28)

A Introduction

263

(1)

B Traits of the Effective Investigator

264

(7)

1 The effective investigator is knowledgeable

264

(1)

2 The effective investigator is skilled

264

(1)

3 The effective investigator is persistent

264

(2)

4 The effective investigator is creative

266

(1)

5 The effective investigator is perceptive

267

(2)

6 The effective investigator is skeptical

269

(1)

a Evaluate the source of information

269

(1)

b Test information for internal consistency

269

(1)

c Look for gaps in information

269

(1)

d Compare new information to information already gathered

270

(1)

e Seek corroborating information

270

(1)

f Seek explanations and details

270

(1)

g Seek leads to more information

270

(1)

7 The effective investigator is flexible

270

(1)

C The Importance of Having a Plan of Investigation

271

(1)

D Formulating a Plan of Investigation

271

(7)

1 Start with what you already know

271

(1)

2 Identify the specific goals of your investigation

272

(1)

a Consider the law of the case

272

(1)

b Write down the ultimate goals of the investigation

273

(2)

3 Brainstorm for specifics

275

(1)

4 Identify all possible sources of information

276

(1)

5 Organize your plan into a logical format and chart it

277

(1)

a The chronological to-do list format

277

(1)

b The topical format

277

(1)

c The sources format

277

(1)

d The cause of action format

278

(1)

E Limitations on a Plan of Investigation

278

(4)

1 The amount of work actually required

279

(1)

2 The cost of the work to be done

279

(1)

3 The value of the case

280

(1)

4 The resources of the client

280

(1)

5 The resources of the law office

281

(1)

6 Client authorization

281

(1)

F Flexibility of a Plan of Investigation

282

(1)

G The Handling of Documents and Physical Evidence During an Investigation

282

(5)

1 Distinguishing between documentary and physical evidence

282

(1)

2 Creating demonstrative evidence

283

(1)

3 The role of the rules of evidence in handling documents and things

283

(2)

4 Procedures for handling documents and things in your custody

285

(1)

a Label the evidence

285

(1)

b Secure the evidence

285

(1)

c Keep an evidence log

285

(1)

5 Procedures for documents and things not in your custody

286

(1)

H The Importance of Diligence and Thoroughness in Executing a Plan of Investigation

287

(4)

1 Diligence

287

(1)

2 Thoroughness

287

(1)

Chapter Summary and Conclusion

288

(1)

Review Questions

288

(1)

Key Words and Phrases to Remember

289

(1)

Learn by Doing

289

(2)

Chapter 10 Preparing for a Client Interview

291

(38)

A Introduction to Interviewing

291

(2)

1 Persons to interview

291

(1)

a Clients

291

(1)

b Fact witnesses

292

(1)

c Other information sources

292

(1)

2 Different methods and locations for interviews

292

(1)

B Reasons for Conducting Client Interviews

293

(1)

1 The initial client interview

293

(1)

2 Subsequent information-gathering interviews

293

(1)

3 The update or status report interview

293

(1)

C Goals of the Initial Client Interview

293

(1)

D Scheduling the Initial Client Interview

293

(4)

1 Check all participants' schedules before you call

294

(1)

2 Have several dates and times in mind before you call

294

(1)

3 Allow for plenty of time

294

(1)

4 Make sure the interview room is available

294

(1)

5 Consider what the client needs to bring

294

(1)

6 Identify yourself when you call

295

(1)

7 Cover all necessary details in the scheduling call

295

(1)

8 Take comprehensive notes during the scheduling call

295

(1)

9 Things to do following the scheduling call

295

(2)

E Preparing for the Initial Client Interview

297

(32)

1 Prepare forms

297

(1)

a Records authorizations

297

(1)

b Fee agreements

297

(7)

2 Prepare your questions

304

(1)

a Review your notes

304

(1)

b Consider what you know so far of the legal question involved

304

(1)

c Consider special needs of the client

305

(1)

d Brainstorm a list of topics to be covered

306

(1)

e Organize the topics in a logical fashion

306

(2)

f Prepare specific questions within each topic

308

(4)

g Consider the phrasing of questions

312

(2)

h Put questions in a format consistent with any checklist or intake sheet being used

314

(1)

i Put questions in a format conducive to taking good notes during the interview

314

(1)

j Be flexible---always expect to ask other questions in the interview

314

(1)

k Have the supervising attorney review questions and forms

315

(1)

3 Using a checklist or intake sheet

315

(2)

4 Prepare the physical environment where the interview is to take place

317

(1)

5 Give thought to any special needs of the client

317

(1)

6 Plan the seating arrangement

317

(1)

a In an office with a desk

318

(1)

b At a rectangular conference table

318

(3)

c At a rounded conference table

321

(1)

d Other considerations in seating

321

(1)

7 Avoid interruptions during the interview

321

(3)

8 Be physically and mentally prepared for the interview

324

(1)

a Get enough rest the night before the interview

324

(1)

b Leave your personal life outside the interview room

324

(1)

Chapter Summary and Conclusion

325

(1)

Review Questions

326

(1)

Key Words and Phrases to Remember

326

(1)

Learn by Doing

326

(3)

Chapter 11 Conducting a Client Interview

329

(28)

A Introduction

329

(1)

B Ten Things to Remember Throughout the Client Interview

330

(1)

1 Be friendly but professional

330

(1)

2 Avoid legal or technical jargon except as necessary

330

(1)

3 The paralegal interviewer and supervising lawyer must be cognizant of the dangers of the unauthorized practice of law

330

(1)

4 Take good notes

331

(1)

5 Engage in active listening

331

(1)

6 Evaluate the demeanor and behavior of the client

331

(1)

7 The client will not know what to tell you---you have to ask

331

(1)

8 Remember the commandments

332

(1)

a Assume nothing

332

(1)

b Verify everything

332

(1)

9 Keep an emotional distance between yourself and the client

332

(1)

10 Overcome internal obstacles to effective interviewing

332

(1)

a Concentrating too intently on your next question

332

(1)

b Concentrating too hard on taking good notes

332

(1)

c Being a slave to the prepared list of questions

333

(1)

d Letting your own biases affect you

333

(1)

C The Order and Manner of Conducting a Client Interview

333

(16)

1 Greeting the client

333

(2)

2 Beginning the interview

335

(1)

a If appropriate, express empathy toward the client

335

(1)

b Explain the absence of the supervising attorney

335

(1)

c Explain your role as a paralegal or associate attorney

335

(1)

d Explain the attorney-client privilege

336

(1)

e Briefly review the goals to be accomplished in the interview

336

(1)

f Explain that you will be taking notes during the interview

336

(1)

g Ask if the client has any questions

336

(1)

h Obtain biographical information for the file

336

(1)

3 Conducting the substantive portion of the interview

337

(1)

a Briefly review any documents the client brought

337

(1)

b Obtain a broad overview of the client's story

337

(1)

c Fill in gaps in the information given

338

(1)

d Ask for definitions of unfamiliar words and phrases

338

(1)

e Ask for details

338

(1)

f Ask for leads to witnesses and documents

339

(1)

g If helpful, have the client draw a sketch or diagram

339

(1)

h Establish an accurate chronology of events

340

(1)

i Clarify errors, inconsistencies, or vagueness in the client's story

341

(1)

j Verify all information given as best you can

342

(1)

k Seek corroborating information

343

(1)

1 Get the particulars on persons and documents mentioned

344

(1)

m Review documents closely and copy or arrange to keep them

344

(1)

n Determine what the client wants

344

(1)

o Check off the topics on your question list as you go

345

(1)

4 Dealing with special problem clients

345

(1)

a The reluctant client

345

(1)

b The highly emotional client

346

(1)

c The self-important or condescending client

346

(1)

d The obviously lying client

347

(1)

5 Concluding the client interview

347

(1)

6 The role of the supporting legal professional when the supervising attorney conducts the interview

348

(1)

7 Following the interview

348

(1)

a If needed, do another conflict of interest check

348

(1)

b Prepare an interview summary

348

(1)

c Prepare a follow-up letter to the client

349

(1)

D Subsequent Client Interviews and Contacts

349

(8)

Chapter Summary and Conclusion

354

(1)

Review Questions

354

(1)

Key Words and Phrases to Remember

355

(1)

Learn by Doing

355

(2)

Chapter 12 Preparing for a Witness Interview

357

(18)

A Introduction

357

(1)

B Goals of the Witness Interview

357

(1)

C Kinds of Witnesses

358

(8)

1 The friendly witness

358

(1)

2 The hostile witness

358

(1)

a Be friendly and patient with the witness

359

(1)

b Try to get the witness to like you

359

(1)

c Use the witness's natural instinct to help

359

(1)

d Use subpoena power as a motivator---if you must

359

(1)

3 The neutral or disinterested witness

360

(1)

4 The skeptical witness

361

(1)

5 The nosey witness

362

(1)

6 The busy witness

362

(1)

7 The too-helpful witness

362

(1)

8 The show-off witness

363

(1)

9 The big-ego witness

363

(1)

10 The condescending witness

363

(1)

11 Special problem witnesses

364

(1)

a Language barriers

364

(1)

b Physical barriers

364

(1)

c Mental barriers

364

(1)

d The Romeo (or Juliet!)

364

(1)

e The witness for sale

365

(1)

D Scheduling and Preparing for the Witness Interview

366

(9)

1 Scheduling the witness interview

366

(1)

2 Preparing for the witness interview

367

(1)

3 Special considerations in scheduling and preparing for a witness interview

368

(1)

a Contacting a witness represented by counsel

368

(1)

b Preserving client confidences and secrets

368

(1)

c Don't use tricks

368

(1)

d The location of the witness interview---the field interview

369

(2)

e Telephone interviews and sound or video recording interviews

371

(1)

f Planning multiple witness interviews

371

(1)

Chapter Summary and Conclusion

371

(1)

Review Questions

372

(1)

Key Words and Phrases to Remember

372

(1)

Learn by Doing

373

(2)

Chapter 13 Conducting a Witness Interview

375

(30)

A Introduction

375

(1)

B Things to Remember Throughout the Witness Interview

376

(2)

1 Observe and evaluate the witness's environment

376

(2)

2 Overcome external obstacles to active listening and observing

378

(1)

3 Avoid disclosing confidential or privileged information

378

(1)

C The Order and Manner of Conducting a Witness Interview

378

(9)

1 Beginning the interview

379

(1)

a Greet the witness

379

(1)

b Express appreciation for the witness's cooperation

379

(1)

c Disclose your status as a paralegal or associate attorney

380

(1)

d Briefly state the purpose of your interview

380

(1)

e Obtain background information on the witness

380

(1)

2 Conducting the substantive portion of the witness interview

380

(1)

a Briefly review any documents the witness has made available

380

(1)

b Obtain a narrative summary of what the witness knows

381

(1)

c Fill in any gaps in the story

381

(1)

d Ask the witness to define unfamiliar terms or concepts

381

(1)

e Ask for details

381

(1)

f Seek leads to other witnesses and documents

381

(1)

g If helpful, have the witness draw a sketch or diagram

382

(1)

h Establish the chronology of events known to the witness

382

(1)

i Clarify errors, inconsistencies, or vague points

382

(1)

j Attempt to verify information provided by the witness

382

(1)

k Ask about corroborating sources

382

(1)

1 Ask about cell phone recordings and social media

382

(1)

m Get the particulars on all persons and documents mentioned

382

(1)

n Make copies of documents produced or arrange to keep them

383

(1)

o Ask the witness to tell you anything else they remember

383

(1)

p Ask about other interviews

383

(1)

q Make sure you have covered everything

383

(1)

3 Impeaching a witness

383

(1)

a Inconsistencies or contradictions in the statement

384

(1)

b Unreliability of the witness's information

384

(1)

c Bias of the witness

384

(1)

d Interest of the witness in the outcome of the case

385

(1)

e History of the witness affecting credibility

386

(1)

4 Concluding the witness interview

386

(1)

5 The interview summary

386

(1)

D Sound or Video Recording the Interview

387

(6)

1 Obtain the prior consent of the supervising attorney

387

(2)

2 Consider using a court reporter

389

(1)

3 Obtain the witness's consent before electronically recording

390

(1)

4 Repeat and record the statement of consent

390

(1)

5 Identify yourself and your position in the recording

390

(1)

6 State the date and time the interview begins

390

(1)

7 Identify all persons present

390

(1)

8 Handling interruptions in the interview

391

(1)

9 Avoid "talking over"

392

(1)

10 How to conclude the electronically recorded interview

392

(1)

11 Transcribe the recording or prepare a summary

393

(1)

12 If appropriate, provide the witness a transcript or digital copy of the interview

393

(1)

13 Preserve the recorded interview

393

(1)

E The Voice-Only Interview

393

(2)

1 Speak and listen carefully

394

(1)

2 Ensure privacy and preserve confidentiality

394

(1)

3 Using documents or things in a voice-only interview

394

(1)

4 Recording the voice-only interview

395

(1)

F The Written Witness Statement

395

(10)

1 The format of a witness statement

396

(1)

2 How attorneys use witness statements

396

(1)

3 Preparing the written witness statement

396

(1)

a It should identify the witness by name and state the date of the interview

396

(1)

b It should be written in the witness's own words

396

(1)

c It should state the total number of pages it contains

397

(1)

d The pages of the statement should be numbered

397

(1)

e Every page should be signed or initialed by the witness

397

(1)

f It should be read and corrected by the witness before it is signed

397

(3)

g It should be signed by the witness

400

(1)

Chapter Summary and Conclusion

401

(1)

Review Questions

401

(1)

Key Words and Phrases to Remember

402

(1)

Learn by Doing

402

(3)

Chapter 14 Identifying and Locating Fact Witnesses

405

(22)

A Introduction

405

(1)

B Identifying Fact Witnesses

405

(10)

1 People sources

406

(1)

a The client

406

(1)

b Other witnesses

406

(1)

c The investigating officer(s)

406

(1)

d Ambulance, rescue squad, and emergency room personnel

407

(1)

e Video cameras in private or public areas

407

(1)

f The scene or neighborhood canvass

407

(1)

g The neighborhood regulars

408

(1)

h The reporting media

408

(1)

i Solicitations in traditional and social media

408

(2)

2 Document and records sources

410

(1)

a Medical records

410

(2)

b Employment records

412

(1)

c Educational records

412

(1)

d Personal correspondence and journaling

412

(1)

e Online correspondence and social networking data

412

(2)

f Business records

414

(1)

g Personal credit, utility, and financial records

415

(1)

h Public records---local, state, and federal

415

(1)

C Locating Missing Witnesses

415

(12)

1 Let's play This Is Your Life

416

(1)

2 Sources of information for locating the missing witness

417

(1)

a People sources

417

(1)

b Organizational sources

418

(1)

c Documentary sources

418

(3)

d Social networking and search engine Web sites

421

(1)

e People search database vendors

421

(1)

f Determining if someone has died

422

(1)

g Locating famous people

422

(1)

h Locating former employees

422

(1)

i Locating current or former members of the military

422

(1)

j Locating current or former prison inmates

422

(1)

k Tracing companies

423

(1)

l Genealogical services

423

(1)

m Book resources for people searches

423

(1)

Chapter Summary and Conclusion

423

(1)

Review Questions

424

(1)

Key Words and Phrases to Remember

424

(1)

Learn by Doing

425

(2)

Chapter 15 Working with Expert Witnesses

427

(20)

A Who Experts Are and Why Attorneys Use Them

427

(3)

1 The definition of an expert

427

(1)

2 Distinguishing consulting experts from testifying experts

428

(1)

3 How attorneys use experts

428

(2)

B Locating Qualified Expert Witnesses

430

(3)

1 Attorneys or paralegals in the office

430

(1)

2 Other attorneys or paralegals in the area

430

(1)

3 Attorneys or paralegals in other parts of the country

431

(1)

4 Lawyer organizations

431

(1)

5 Referral companies

431

(1)

6 Directories

431

(1)

7 Professional, technical, and trade organizations

431

(1)

8 Private businesses

432

(1)

9 Colleges and universities

432

(1)

10 Government agencies

432

(1)

11 Literature in the field of expertise

432

(1)

12 Other experts

432

(1)

13 The Internet

433

(1)

C Evaluating the Expert

433

(5)

1 Why we evaluate experts

433

(1)

2 The expert's resume

433

(1)

3 How to evaluate an expert

433

(1)

a Look for education, training, and work experience

433

(1)

b Look at the specific area of expertise

433

(2)

c Verify information on the resume

435

(1)

d Check the expert's online presence

435

(1)

e Review the expert's publications

436

(1)

f Review publications on which the expert bases his or her opinions

436

(1)

g Locate and review prior testimony by the expert

436

(1)

h Ask for references

436

(1)

i Interview the expert

437

(1)

D Working Successfully with Expert Witnesses

438

(9)

1 Obtain the expert's fee schedule early

438

(1)

2 Be sure the expert does not have a conflict of interest

439

(1)

3 Become familiar with technical terms and concepts in the expert's field

439

(1)

4 Do not identify the expert in discovery until the decision has been made to use the expert for testimony

439

(1)

5 Do not supply the expert with privileged materials

440

(1)

6 Always communicate a neutral picture of the case to the expert

441

(1)

7 Provide materials requested by the expert promptly

442

(1)

8 Keep a record of all materials sent to or received from the expert

442

(1)

9 Do not allow the expert to put preliminary opinions in writing

442

(1)

10 Be familiar with all rules of evidence and procedure that apply to the expert

443

(1)

Chapter Summary and Conclusion

443

(1)

Review Questions

444

(1)

Key Words and Phrases to Remember

444

(1)

Learn by Doing

444

(3)

Chapter 16 Public Sources of Information---Federal

447

(28)

A Introduction

447

(1)

B Public Records in General

448

(1)

C The Importance of Knowing How Government Works

448

(1)

D Structure of the Federal Government

449

(1)

E Determining What a Federal Agency or Department Does and the Records It Maintains

449

(5)

1 Experienced people in the office

449

(2)

2 Government publications

451

(1)

3 Data.Gov and Agency Web sites

451

(1)

4 State and local bar directories and handbooks

452

(1)

5 The phone book

452

(1)

6 Publications

453

(1)

7 Enabling statutes and regulations

453

(1)

F How to Access Information from the Federal Government

454

(21)

1 The judicial branch---court records

454

(1)

a Kinds of information available in federal court records

454

(1)

b How to conduct searches in federal court records

455

(1)

c Computerized resources for searching federal court records

456

(1)

2 The legislative branch---Congress

457

(1)

a Congress on the Internet

457

(1)

b Accessing Congress through database vendors

458

(1)

3 The executive branch

458

(1)

a Executive orders

458

(1)

b Obtaining information from the White House

458

(1)

c Obtaining information from executive agencies

458

(13)

Chapter Summary and Conclusion

471

(1)

Review Questions

471

(1)

Key Words and Phrases to Remember

472

(1)

Learn by Doing

472

(3)

Chapter 17 Public Sources of Information---State and Local

475

(26)

A The Structure of State and Local Governments

475

(1)

B Records Maintained by State Governments

476

(6)

1 Vital statistics

477

(1)

2 Motor vehicle and driving records

478

(1)

3 Corporate and other business records

478

(1)

4 Licensing and registration records

479

(1)

5 Regulatory commission records

480

(1)

6 Tax and revenue records

480

(1)

7 Securities filings

480

(1)

8 Social service agencies records

480

(1)

9 Workers' compensation records

480

(1)

10 Law enforcement records

481

(1)

C Records Maintained by Local Governments

482

(4)

1 Records of civil and criminal cases in court clerk's offices

483

(1)

2 Permits and licenses

483

(1)

3 Real property transfer records in register/recorder of deeds office

483

(1)

4 Tax records in assessor's offices

483

(1)

5 Probate court records

484

(1)

6 Vital statistics

484

(1)

7 Voting records in election commission offices

484

(1)

8 Public utilities records

484

(1)

9 Law enforcement records in police and sheriff's departments

484

(1)

10 Public school records

484

(1)

11 The public library

484

(2)

D State Public Records Acts and Other Statutes and Rules Controlling Accessibility

486

(9)

1 What is an accessible "public record" under a state PRA?

487

(2)

2 Who can access a public record using a state PRA?

489

(1)

3 Procedure for accessing public records under a state PRA

490

(5)

E Other Sources for Accessing State and Local Government Records

495

(6)

1 State and local government sponsored "open data" sites

495

(1)

2 Non-governmental Web sites

495

(1)

3 Online database vendors

495

(1)

4 Public records search companies

496

(1)

5 CD-ROM resources

496

(1)

Chapter Summary and Conclusion

497

(1)

Review Questions

497

(1)

Key Words and Phrases to Remember

497

(1)

Learn by Doing

498

(3)

Chapter 18 Private Sources of Information

501

(26)

A An Overview of Private Sources of Information

501

(3)

B Accessing Private Sources of Information

504

(23)

1 Medical records

504

(1)

a Obtaining medical records by written patient authorization

504

(1)

b Drafting the medical records authorization

504

(1)

c Using the medical records authorization

505

(2)

d Special medical records authorizations

507

(1)

e Obtaining medical records by court order

507

(1)

f Obtaining medical records by Rule 45 subpoena

508

(1)

2 Employment records

509

(1)

3 Educational records

509

(1)

4 Other sources of academic information

509

(1)

5 Address and phone records

509

(1)

a Finding address and phone numbers

509

(1)

b Accessing unlisted phone numbers

510

(1)

c Phone call records and wiretapping

511

(1)

6 Credit records on individuals

511

(2)

7 Credit information on businesses

513

(1)

8 Bank account, credit card, and general financial information on individuals

513

(2)

9 Financial and general business data on corporations and other businesses

515

(1)

10 Online database vendors

516

(3)

11 Background check companies

519

(1)

12 Private investigative firms

519

(1)

a Locating a reliable private investigator

520

(1)

b Working effectively with a private investigator

520

(2)

13 Resources on the Internet

522

(1)

Chapter Summary and Conclusion

523

(1)

Review Questions

524

(1)

Key Words and Phrases to Remember

524

(1)

Learn by Doing

525

(2)

Appendix A Case Studies

527

(12)

Case Study No. 1 The Rowdy Outlaw Case

529

(3)

Case Study No. 2 The Red Dog Saloon Case

532

(2)

Case Study No. 3 The Vidalia Unyon Case

534

(3)

Case Study No. 4 The Rocky Road Project

537

(2)

Appendix B Resources for the Investigator

539

(36)

Glossary

575

(18)

Index

593

(6)

Table of Cases

599

Interviewing and Investigating: Essential Skills for the Legal Professional 6th ed. [Pehme köide]

Konto & seaded

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Otsingu andmebaas

Filtreeri tulemusi

Teemad Ingliskeelsed raamatud

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