Preliminary investigation

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 55-82

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interview client task 7

CHAPTER 2: PRELIMINARY INVESTIGATION

TASKS

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

FORMS

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

TASK 7

Interview Client

I. WHAT AND WHY

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.

II. WHEN

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.

III. HOW

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-

grammers.

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.

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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

witness.

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

witnesses.

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

discrimination?”