Chapter 11
IN THIS CHAPTER
Locating and obtaining evidence to prove the client’s case
Marking and preserving evidence to use at trial
Organizing evidence to meet the demands of case preparation
Cases don’t just show up on the law firm’s doorstep served on a silver platter ready to take to court. Too often, the attorney and paralegal need to discover and develop the facts of the client’s case in order to effectively prepare for settlement or trial. This means doing a little detective work. As a paralegal, you may find yourself playing Sherlock Holmes or Nancy Drew to find important evidence. Your supervising attorney may also call on you to mark and preserve case evidence and organize it for trial.
In this chapter, we show you how to conduct the informal discovery process (as opposed to the formal discovery process we discuss in Chapter 6, involving submitting to the other party written documents, like interrogatories and requests for production, and conduction depositions). We give you tips on how to find supporting evidence for civil cases, how to mark the evidence and keep it safe for trial, and how to organize it to present the client’s case in the most convincing manner.
Many large law firms have professional investigators on their staffs to help uncover relevant evidence for their cases. But in a small firm or for a less complex case, guess who often becomes the primary fact finder for the attorneys? That’s right. When you work as a paralegal, you may be involved in a little investigation work.
Through legal investigation, you can find information that helps with many aspects of a case. Here are a few of the way you’ll use investigation:
Obtaining evidence is the first, and sometimes hardest, step of the legal investigative process. Every investigation has an objective, so make sure you clearly understand why your employer is asking you to gather certain facts.
Most likely, your supervisor will ask you to obtain papers and photographs because these are two of the most unimpeachable sources of information you can find. Papers include any documents that support the client’s version of the facts and may include letters, contracts, and public records. Photographs may be pictures of the scene of the event in dispute, or they may be pictures of evidence that isn’t easily presented in court, such as a damaged car or a depiction of a serious personal injury as it appeared on the date in question.
After you’ve gained experience in fact gathering and investigation, you’ll probably develop your own unique style of obtaining evidence. Trial and error helps you determine which methods work best in certain situations, so you have to be persistent. All methods, though, should include spotting issues, forming checklists, and pursuing all kinds of information sources, all of which we cover in the following sections.
You can focus your investigation by spotting the relevant issues of law and fact in a particular case. An issue is the legal controversy that litigation attempts to resolve. When parties disagree about some fact or legal conclusion, you’d say that that fact or point of law is at issue. You attempt to resolve issues of law through legal research (see Chapter 13); you try to resolve issues of fact through legal investigation.
There may be more than one issue in a case; in fact, most cases involve several issues. You generally see issues presented as questions. The purpose of a thorough legal investigation is to find the information you need to answer these questions. Often, your supervising attorney formulates the issues for you. Sometimes you’ll have to come up with them yourself, especially if your investigation uncovers information that leads to new issues.
For instance, in the slip-and-fall case of Kelley Klutz outlined in Chapter 10, the following relevant issues may come into play:
The opposing parties would probably disagree on the correct answers to these four questions, but knowing their actual answers is vital to the case. Your job is to uncover and verify through investigation the facts necessary to provide answers for each of these questions or issue statements.
Based on the relevant issues of a case, you create and rely on checklists to begin the fact gathering process. A checklist merely lists questions to answer and duties to accomplish in a sequential order. Your mission is to answer the questions and take on those duties in order to fully complete an investigative project.
You don’t have to make up a checklist from scratch. Other paralegals and attorneys have thought of these situations in other lawsuits, so you likely won’t need to reinvent the wheel. A great source for sample checklists is the American Jurisprudence Proof of Facts (POF) series, which details the necessary facts you need for virtually any investigative project. You can find this series of formbooks in law school libraries and most county courthouse law libraries. POF is also available through access to Westlaw online legal research service. You should begin your research in the topical index at the end of the POF series. When you refer to this series, you’ll find out how to prepare checklists for just about any type of lawsuit imaginable.
Over time, law offices compile their own sets of checklists for investigating common issues. For instance, your investigative project may require you to determine whether process was properly served upon the party named in the summons and complaint. You could use a checklist from your office’s information base to form the basis of your fact gathering process.
If you create checklists for new issues, you add them to the existing lists in your office’s workbooks for future use. As you become a successful fact gatherer, you’ll create new chapters of checklists that correspond to each area of inquiry.
Generally, investigation checklists should cover the following:
Then you create more specific checklists that apply to each of main categories listed here.
Here’s an example of the kinds of questions a checklist to determine proper service of process might include:
Working from the checklist (see the preceding section), you then seek to obtain the information necessary to answer the questions. You don’t need a special degree in the field of investigation to find out some of the juiciest bits of information about people and events. Many of your best tools come from public sources.
You usually begin investigative fact gathering with a search of the Internet. Search engines and telephone calls may turn up addresses, land line phone numbers, and even ages of individuals, as well as phone numbers, addresses, and websites of businesses.
The easiest way to access published information is through the one of the numerous online directories, like www.whitepages.com
, www.beenverified.com
, www.anywho.com
, www.ussearch.com
, and www.superpages.com
. If one of these websites doesn’t produce the information you’re looking for, you may find it in the crisscross directory provided by Cole: www.coledirectory.com
. Criss-cross directories may list the owner of a telephone number even when the number is unlisted.
Another avenue for accessing personal and company information is social media. Conducting searches on Facebook and LinkedIn may reveal elusive cell phone numbers and information about an individual’s work history or a company’s employees. You may also obtain extensive information about a person’s educational background and find helpful connections.
Court documents filed in the case are excellent source information. You can start your search by consulting the case pleadings (such as the complaint, answer, reply, and any third-party complaints and answers). If you work for the defense attorney in a personal injury case, you can get all of this from the plaintiff’s complaint: the location of the incident, who was involved in the incident, the damages claimed, and salient details about the plaintiff’s lifestyle, family, and job. The attorney may then use this information to determine whether she should suggest an all-out fight against the claim in court or focus primarily on settlement. Similarly, a paralegal for the plaintiff’s attorney may use information from the defendant’s answer to delve more deeply into the investigation of the plaintiff’s claim.
Of course, discovery documents — such as interrogatories, requests for admission, requests for production of documents, and deposition digests — provide excellent information about a case, and your job may be to sift through it all to find what’s pertinent for your attorney.
You may find some precious gems of information in the court documents of other civil cases that the opposing party has been involved in. Usually pleadings, motions, and affidavits are part of the public record, but discovery documents don’t often end up in the court files.
Hospital, school, court, motor vehicle, and military records contain information that is usually easily admitted as evidence in court and that even eyewitnesses have trouble refuting. You can find quite a bit of information just by accessing public records. For instance, if you work for the defendant’s attorney in a personal injury case, you’ll probably retrieve the records from the hospital where the plaintiff received treatment. Hospital records indicate the types of injuries the plaintiff suffered, the treatment the plaintiff received, and the cost of the treatment. This kind of information is good to know if the suit goes to trial, and it can also influence the defense if it decides to settle.
The key is knowing where to go, so become familiar with the kinds of records kept by the county clerks, local school districts, the tax assessor’s office, and other offices and agencies. Table 11-1 summarizes some of the sources for records and the kinds of information the records contain. If you don’t know where to find information, contact governmental agencies.
TABLE 11-1 Sources of Information
Source |
Type of Information |
Police department incident or offense reports |
Facts of an incident and the names, birth dates, addresses, and telephone numbers of the participants |
Arrest records and warrants |
Name, address, birth date, physical description, Social Security number, and fingerprints of the accused |
Traffic accident reports |
Location and time of the accident; names, addresses, and birth dates of the driver and passengers; driver’s license numbers; and automobile registration numbers |
Telephone and cell phone company records |
An individual or business’s full name, address, land line or cell phone number, length of phone service, record of calls and location, and number of extensions |
Post office |
An individual’s full name, address, post office box number, and any forwarding addresses |
Credit card companies |
An individual’s employment and credit references and information regarding the types of charges an individual makes |
County assessor’s office |
Dimensions and taxable income on real property and information about property improvements |
Health department records |
Names and maiden names of a child’s parents, their occupations and ages, and name of the child’s physician |
Public school records |
Past and present records of students and possibly their photographs |
Professional trade association and union records |
List of members’ names and their addresses and telephone numbers |
Banks and other financial institutions |
An individual’s full name, address, occupation, sources of income, expenditures, personal and business references, net worth, and handwriting samples |
Moving companies |
An individual’s forwarding address |
Bureau of Vital Statistics |
Birth certificates (which contain an individual’s full name, birth date, place of birth, time of birth, and parents’ names) and death certificates (for name, birth date, last known address, and cause of death of the deceased) |
County clerk’s office |
Marriage license records (for an individual’s marital information, birth date, signature, and last known address), divorce records (for an individual’s marriage date and location, separation date and location, children’s ages, community property, signature, and place of employment), civil files (for name changes, property liens and property descriptions, and the types of civil cases in which an individual is involved), criminal files (for transcripts of preliminary hearings, probation officer reports, subpoenas issued in a case, and names of attorneys who are involved in the case) |
Election commission |
A registered voter’s full name, address, occupation, political affiliation, spouse’s name, and most recent location of voter registration |
Credit reporting agencies |
An individual’s full name, address, birth date, occupation, present and former addresses, credit rating, and marital status, as well as information regarding whether an individual owns or rents a home and documentation of personal and professional references, banks and financial institutions, and names of relatives |
U.S. Citizenship and Immigration Services ( |
Full name, address, occupation, age, physical description, marital status, signature, photograph, and date and manner of entry of an alien |
Federal Aviation Administration ( |
Aircraft ownership information |
Department of Motor Vehicles |
An individual's full name, address, physical description, birth date, vehicle information, operator’s license number, photograph, and signature |
Utility companies |
An individual’s name, address, and prior addresses, as well as information regarding who’s responsible for paying an individual’s bill |
Secretary of state |
Information regarding corporations (registered agents, officers, and status), assumed names, and liens filed (Uniform Commercial Code, or UCC) |
When you locate the appropriate records, be very polite to the office personnel you deal with. If you act impatiently or abruptly with the records staff, the person on the other end of the line will usually make it difficult for you to collect any information at all. If politeness doesn’t work, then you may want to announce yourself as a paralegal and mention the attorney or law firm you represent. Most public employees are fairly willing to accommodate attorneys and law firms they’re familiar with, so it doesn’t hurt to name-drop.
But don’t use an overly authoritative tone — it can often backfire. Although public employees are generally willing to help, they don’t respond well to perceived threats. In fact, it may just result in some feet dragging.
Every paralegal comes across a situation for which there’s no available answer. If this happens to you, you may need to consult sources other than witnesses or parties to the action.
Community members like courthouse employees, city hall employees, reporters, experienced legal investigators, and even local gossips have a vast amount of knowledge and are usually willing to share the information with someone who appears interested in learning about it.
For more about how to conduct an interview, see Chapter 12.
Evidence comes in two basic forms: testimonial and tangible. Testimonial evidence is oral evidence, the kind presented by the spoken word of witnesses and experts. Tangible evidence consists of documents, photos, and other items you can hold or touch. (For more about evidence, consult Chapter 7.) One of your duties as a paralegal may be to mark and protect evidence so it’s ready for trial.
After you obtain and verify tangible evidence, you need to carefully mark each item. Usually this means designating the evidence with your initials and recording the evidence in a journal or on a spreadsheet. You may have to assign each item its own unique number to assure that you can identify the evidence when you need it. When you follow a uniform procedure, you increase the chances that the court will rule to admit the evidence into court.
After you mark tangible evidence, take measures to keep it safe. Wrap or bag it to keep the evidence from being destroyed, harmed, or altered in any manner. And keep a log that records everyone who takes a piece of evidence from safekeeping so that you know where evidence is if it’s not in its protected location. To protect the client’s chances for victory, you have to preserve evidence that may be easily altered (like original documents) from tampering and modification. Place this kind of evidence in a locked safe or safe-deposit box to guarantee its preservation.
Your final step in working with evidence is to organize it so that the evidence establishes the chain of events of the client’s case. Well-organized evidence tends to support a good story line and persuade listeners. Disorganized evidence detracts from the continuity of a story. If a piece of evidence doesn’t directly support the client’s story, you have to provide a logical explanation for the incongruity.
When you work as a paralegal, you’ll probably organize evidence in three different ways to get the most impact from it: chronologically, by version, and by inconsistencies. We cover each of these in the following sections.
Order the evidence chronologically by linking each piece of data to the rest in the order that the related action occurred. Chronological ordering of evidence helps promote the accuracy of the client’s version of the story. It also makes the most sense to the fact finder (usually the jury) at trial.
Chronological ordering of evidence provides an important aid in the ultimate resolution of the case, and it assists in maintaining the consistency of the investigation process. When you chronologically order the information as you uncover it, you can more easily define the gaps of information that require you to conduct further research.
Every story has more than one side. Organizing evidence as it relates to different versions of a story helps you keep track of which piece of information goes with which version of the case. So, you’ll more likely be prepared to help your supervising attorney use the evidence to strengthen the client’s case and also rebut the opposition.
After you’ve ordered the evidence chronologically and by version, you may find some inconsistencies in the information. You can organize these inconsistencies into checklists to prepare for further investigation. In this way, investigation continues throughout the litigation process. You prepare investigation checklists for one issue, diligently draw upon the sources of information to answer the questions on the checklist, and prepare the products of the investigation so that they’ll be valuable to the client’s case. Often, investigation of one issue uncovers new issues and new checklists. You may need to conduct further investigation in order to answer new questions as they come up. The investigation process usually doesn’t end until the case is settled.