Preliminary investigation

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 79-112

HANDLING FEDERAL DISCOVERY

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 information 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.

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TASK 7 PRELIMINARY INVESTIGATION

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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 client before you respond to the complaint so you can respond

as completely and accurately as possible.

C. Interview your client before you disclose your witnesses 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 intellectual property

creation.

2. Participants in any aspect of the case, such as inventors, salespeople, and computer programmers.

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 personnel problems.

7. Anyone with ultimate responsibility.

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 provides 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 uncomfortable. 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.

INTERVIEW CLIENT TASK 7

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3. If you represent an entity, you may not be able to represent its employees. However, communications

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 comfortable. Consider the following:

1. First let witnesses exhaust their recollections by asking open-ended questions to elicit narrative answers.

One way to obtain a complete account is to ask them to proceed chronologically. Do not let them move

on until you fully understand each point.

2. Next, probe and prompt their memory by asking 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 understanding 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?”

4. Ask witnesses to identify anyone who can corroborate their testimony or with additional information.

Also ask for any relevant documents.

5. Ask witnesses about any “skeletons in their closets,” i.e., facts that may impeach their testimony such as

felony convictions, relationships with opposing parties or prior dealings with others involved in the case.

I. Promptly after each interview, draft a memorandum to the file summarizing the interview. Note the

witnesses’ demeanor, credibility and other factors that may affect their trial or deposition testimony.

J. Add the facts you learn in each interview to your annotated proof of fact. Consider whether any new

information justifies amending your claims or defenses.

IV. PRACTICE NOTE

A. During the interviews, alert witnesses to any tendencies or idiosyncrasies that may affect their credibility

such as straying from the topic, using unnatural vocabulary or avoiding eye contact during key points.