Preliminary investigation

AuthorWilliam M. Audet/Kimberly A. Fanady
interview client task 7
Task 7 Interview Client
Task 8 Review Client’s Documents
Task 9 Interview Nonparties
Task 10 Pursue Public Sources of Information
Task 11 Conduct Formal Pre-Complaint Discovery
Task 11A Seek Ex Parte Order for Seizure of Evidence
Form 3 Freedom of Information Act Request
Form 4 Petition for Pre-Complaint Discovery
Form 4A Application for Ex Parte Order of Seizure
Form 4B Memorandum in Support of Application for Ex
Parte Order of Seizure
Form 4C Declaration in Support of Application for Ex Parte
Order of Seizure
Form 4D Proposed Order of Seizure
Interview Client
A. One of your primary sources of evidence in a case
will probably be your client. As early as you can,
formally interview your client and your client’s
employees and other agents to learn what informa-
tion they have about the case.
B. Your main goals in a client interview are to:
1. Elicit a detailed record of your client’s version
of the events giving rise to the dispute.
2. Discover other sources of evidence.
3. Help present your client’s version of the facts
in the most favorable light possible.
A. If you represent the plaintiff, interview your client
before you file the complaint. You want as much
information as possible to avoid any embarrassing
or damaging evidence from your own camp.
B. If you represent the defendant, interview your cli-
ent before you respond to the complaint so you can
respond as completely and accurately as possible.
C. Interview your client before you disclose your wit-
nesses as required by FRCP 26(a)(1) (see Task 23)
so your disclosure will be complete and accurate.
D. As a practical matter, you may interview your client
anytime, even during trial. Unlike formal discovery,
no cutoff date exists for informal discovery.
A. Review your annotated proof of fact (Task 4) to
determine the facts you need to prove your case
and which witnesses may be able to establish
those facts.
B. List all your client’s agents, employees and
others under your client’s control who had any
involvement with the events giving rise to the
dispute, including:
1. Eyewitnesses to any aspect of the case, such as
contract formation, state of repair or intellec-
tual property creation.
2. Participants in any aspect of the case, such
as inventors, salespeople, and computer pro-
3. Relatives or others with whom your client may
have discussed relevant matters.
4. Anyone who previously dealt with the other side.
5. Accountants, health professionals, and others
able to assess damages.
6. Each witness’ superiors to learn of any person-
nel problems.
7. Anyone with ultimate responsibility.
task 7 Preliminary investiGation
C. Schedule an interview of each person on the list.
1. Consider first interviewing witnesses with a
broad base of knowledge. This allows you to
understand the big picture before you learn
the details.
2. Take into account each person’s availability.
D. Decide where to hold the interviews.
1. Holding interviews at your office means fewer
interruptions for the witnesses (but more for
you) and provides a sense of formality that may
cause them to take the interview more seriously.
2. Holding interviews at witnesses’ offices pro-
vides them more convenience and comfort and
may facilitate rapport. You also have access to
their evidence.
E. To prepare for the interviews:
1. Review the facts you already know.
2. List the topics you want to cover with the
3. Assemble any documents or other evidence
you want the witness to address.
4. Review your notes of prior interviews.
F. Consider how you will record the interview.
Taking notes is probably sufficient, although you
may want to tape it. Tape recording produces a
complete transcript, but may make clients uncom-
fortable. Be sure to get the client’s written consent
to any electronic recording.
G. Encourage witnesses to be honest and complete.
1. Explain that your communications are protected
under the attorney-client privilege (see Task 12).
2. Explain that harmful evidence is most harmful
when you do not have enough time to deal with
it. Assure them that you can deal with almost
anything so long as they tell you about it now.
3. If you represent an entity, you may not be able
to represent its employees. However, commu-
nications with employees which enable you to
represent the entity are protected. Upjohn Co.
v. United States, 449 U.S. 383 (1981). Consult
your jurisdiction’s professional responsibility
rules about:
a. Conflicts of interest when you represent
employers and employees.
b. Contacting former employees.
4. Appeal to their sense of justice by stressing
their stake in the dispute, e.g., saving their
company money, deterring similar incidents or
being a “hero” or a “star” witness.
5. Explain the legal process (depositions, trial)
and how their testimony fits into the case.
6. Dispel any unreasonable fear that the dispute
threatens them. For example, employees may
fear that telling the truth may threaten their jobs.
7. List the people you already interviewed.
8. Tell some “war stories” about good and bad
9. Empathize with any trauma they suffered from
the events of the case.
10. Empathize with their prior experiences with
the legal system.
H. Use an interviewing style that makes you comfort-
able. Consider the following:
1. First let witnesses exhaust their recollections
by asking open-ended questions to elicit nar-
rative answers. One way to obtain a complete
account is to ask them to proceed chronologi-
cally. Do not let them move on until you fully
understand each point.
2. Next, probe and prompt their memory by ask-
ing specific questions about what you expect
happened or you learned from other sources,
but they have not mentioned. For example:
a. “Were any other people present who might
have heard what happened?”
b. “Did she say anything about the memory
capacity of the computer system?”
c. “Did he tell you the computer system was
incompatible with the leading software for
your business?”
3. After you exhaust their knowledge, use leading
questions to help them present their testimony
in a favorable light and confirm your under-
standing of their testimony. For example:
a. “In other words, she didn’t mention that
the computer system was incompatible
with the only available software for your
business, even after you told her how you
intended to use the system?”
b. “What you’re telling me is that right after
the accident, while you were pinned in the
car, the defendant apologized and admitted
that he didn’t look before proceeding into
the intersection.”
c. “Do you mean to say that over 45% of
your employees, including the person you
hired to replace the plaintiff, are racial
minorities and yet plaintiff is suing you for

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