What are you trying to prove? Spotting issues

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:

• Is Worst Deal negligent in the maintenance of its floor?
• If Worst Deal is negligent, was this negligence the proximate cause of Mr. Klutz’s fall and subsequent injuries?
• Is Mr. Klutz contributorily negligent?
• Is the tile company strictly liable for manufacturing and installing defective floor tile?

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.

What order will you follow? Creating checklists

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:

• Known facts and whether they can be proved or supported
• Facts that must be corroborated by supporting evidence
• The kind of evidence that must be gathered
• The way evidence should be gathered
• Where you may find evidence (like agency documents, personal records, personnel files, business records, medical records, and so on)
• The best method of inquiry (such as by telephone interview, letter, personal interview, formal discovery, and so on)
• The appropriate timeframe required to complete the investigation

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:

• Was the process sufficient on its face?
• Was the proper defendant named in the process?
• Was the named defendant served with the process?
• Was the person who served the process over 18 years of age?
• Was the process server a party to the action?
• Were there any documents other than the complaint served with the summons? If so, what were these documents?
• Were there any witnesses to the service of process?
• Was the return of service properly executed.
• Was the properly executed return of service returned to the correct court?

When you create checklists, keep in mind that fact gathering evolves through the investigation process. Even the most structured plans of attack may end up as only guidelines. The plan you implement with a checklist may uncover unanticipated facts. Don’t get discouraged if you merely stumble upon pertinent information. You might find a gold mine of information in some of the least expected places. That’s part of the give and take of investigation. Don’t leave any stone uncovered just because it’s not on your checklist!

Who are you going to call? Sources of information

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.

Some of the most helpful sources of information are the ones that are most easily accessible. You’ll be amazed at how much you can find out from conducting Internet searches, analyzing court documents, exploring public and business records, interviewing experts, and using more creative alternatives.

Leaving your mark: Identifying evidence

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.

Although you can’t really file and maintain testimonial evidence, you’re still responsible for keeping track of testimony. Record names, addresses, and phone numbers of witnesses and experts in the evidence journals or spreadsheet. Maintaining good records results in more effective evidence.

On guard: Protecting evidence

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.

If a court isn’t confident about the way evidence has been preserved, the court could easily throw it out, which means your attorney can’t present it at trial. Not only does this adversely affect the client’s case, but it could also ruin the reputation of the attorney and law firm. Careful identification and preservation of evidence is crucial.

Setting a time frame: Chronological organization

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.

Getting the story straight: Organization by versions

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.

Noting discrepancies: Organization by inconsistencies

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.