Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Interviewing & Investigation Foundations of Investigating

Formal Discovery in Civil Litigation KPIs: KPIs: procedural rules that govern formal discovery in a civil case procedural rules that govern formal discovery in a civil case the kinds of information that are discoverable the kinds of information that are discoverable various methods of formal discovery various methods of formal discovery order in which formal discovery ought to be conducted order in which formal discovery ought to be conducted role of the investigating paralegal in formal discovery role of the investigating paralegal in formal discovery how to draft various kinds of documents and related motions how to draft various kinds of documents and related motions how to index or summarize a deposition how to index or summarize a deposition

Comparing Formal and Informal Discovery Event Giving Rise to the Suit Lawsuit is filed Trial or Settlement Formal Discovery Informal Discovery

Advantages of Informal Investigation Early investigation produces more information Early investigation produces more information Information located early is more reliable Information located early is more reliable Information sought informally is more easily obtained Information sought informally is more easily obtained Information sought informally is less expensive Information sought informally is less expensive

Advantages of Informal Investigation No opposing party is present for informal investigation No opposing party is present for informal investigation The first side to locate relevant information gains advantages in litigation The first side to locate relevant information gains advantages in litigation Prompt investigation enhances settlement prospects Prompt investigation enhances settlement prospects

Limits on Informal Discovery The parameters of what is legal The parameters of what is legal The ethical rules that govern lawyers and those that work with them The ethical rules that govern lawyers and those that work with them The scope of authority given to the investigator by the client The scope of authority given to the investigator by the client The investigator’s imagination and industriousness The investigator’s imagination and industriousness

Objectives of Pre-filing Investigation To determine if there are facts sufficient to state one or more causes of action To determine if there are facts sufficient to state one or more causes of action To determine provable damages To determine provable damages To determine if there are facts sufficient to assert a valid defense To determine if there are facts sufficient to assert a valid defense To satisfy special pleading requirements To satisfy special pleading requirements To identify all potential defendants To identify all potential defendants

Objectives of Pre-filing Investigation To determine the assets of identified defendants To determine the assets of identified defendants To determine questions of personal jurisdiction To determine questions of personal jurisdiction To determine questions of subject matter jurisdiction To determine questions of subject matter jurisdiction To determine the proper venue for a case To determine the proper venue for a case To determine questions regarding governmental immunity To determine questions regarding governmental immunity

Formal Discovery in Civil Litigation KPIs: KPIs: procedural rules that govern formal discovery in a civil case procedural rules that govern formal discovery in a civil case the kinds of information that are discoverable the kinds of information that are discoverable various methods of formal discovery various methods of formal discovery order in which formal discovery ought to be conducted order in which formal discovery ought to be conducted role of the investigating paralegal in formal discovery role of the investigating paralegal in formal discovery how to draft various kinds of documents and related motions how to draft various kinds of documents and related motions how to index or summarize a deposition how to index or summarize a deposition

Methods of Formal Discovery in a Civil Case Depositions Depositions Interrogatories Interrogatories Requests for Production of Documents and Things Requests for Production of Documents and Things Requests for Physical or Mental Examinations Requests for Physical or Mental Examinations Request for Admissions Request for Admissions

Drafting Guidelines for Discovery Documents Identify and organize the topics to be addressed Identify and organize the topics to be addressed Use clear and concise language Use clear and concise language Be thorough Be thorough Don’t be wordy Don’t be wordy Use subparts carefully Use subparts carefully Use definitions Use definitions Use instructions with caution Use instructions with caution Avoid abusing discovery Avoid abusing discovery Review requests carefully for objections Review requests carefully for objections Answer only what is fairly asked Answer only what is fairly asked Comply with all rules of procedure and local rules of court Comply with all rules of procedure and local rules of court

The Order of Discovery Interrogatories and document requests Interrogatories and document requests Depositions Depositions Requests for physical or mental examination Requests for physical or mental examination Requests for admissions Requests for admissions

Formal Discovery in Criminal Litigation KPIs: KPIs: procedural rules that govern formal discovery in a criminal case procedural rules that govern formal discovery in a criminal case the kinds of information that are discoverable in criminal litigation the kinds of information that are discoverable in criminal litigation the role of pretrial hearings in discovery in a criminal case the role of pretrial hearings in discovery in a criminal case the use of motions in a criminal case to aid in discovery the use of motions in a criminal case to aid in discovery role of the paralegal in formal discovery in criminal cases role of the paralegal in formal discovery in criminal cases

Means of Formal Discovery Available to the Defense: Criminal Litigation Review of the criminal complaint Review of the criminal complaint Initial appearance Initial appearance Preliminary hearing Preliminary hearing The information and the indictment The information and the indictment Bill of particulars Bill of particulars Rule 16 discovery Rule 16 discovery Identity of witnesses Identity of witnesses

Means of Formal Discovery Available to the Defense: Criminal Litigation Statements of witnesses Statements of witnesses Exculpatory material -- the Brady doctrine Exculpatory material -- the Brady doctrine Depositions Depositions Motions as discovery devices Motions as discovery devices The Freedom of Information Act and The Privacy Act The Freedom of Information Act and The Privacy Act

Means of Formal Discovery Available to the Prosecution: Criminal Litigation Initial appearance Initial appearance Preliminary examination Preliminary examination Grand jury testimony Grand jury testimony Rule 16 discovery Rule 16 discovery Statements of witnesses Statements of witnesses Prior notice of affirmative defenses Prior notice of affirmative defenses

Discovery of Electronic Evidence (e-discovery) Over 50 billion s are sent each day Over 50 billion s are sent each day Private persons, businesses, and government are creating and storing more documents electronically Private persons, businesses, and government are creating and storing more documents electronically 90% of documents world wide are created in digital form 90% of documents world wide are created in digital form

Role of the Paralegal in Formal Criminal Discovery Attendance at pretrial proceedings Attendance at pretrial proceedings Review and analysis of court filings Review and analysis of court filings Drafting discovery documents and related motions Drafting discovery documents and related motions Familiarity with discovery procedures Familiarity with discovery procedures Familiarity with forms Familiarity with forms Reviewing documents, reports, and summaries Reviewing documents, reports, and summaries Assisting the client in responding to discovery requests Assisting the client in responding to discovery requests

Rules of Evidence for the Investigator (Part 1) KPIs: KPIs: difference between testimonial, real, documentary, and demonstrative evidence difference between testimonial, real, documentary, and demonstrative evidence first-hand vs. second-hand knowledge and direct vs. circumstantial evidence first-hand vs. second-hand knowledge and direct vs. circumstantial evidence laying a proper foundation for certain kinds of evidence laying a proper foundation for certain kinds of evidence role of the burden of proof and the degree of proof required in civil and criminal cases role of the burden of proof and the degree of proof required in civil and criminal cases various kinds of privileged information various kinds of privileged information

Means of Proof Testimonial evidence: received from the sworn testimony of witnesses Testimonial evidence: received from the sworn testimony of witnesses Documentary evidence: received from properly admitted documents Documentary evidence: received from properly admitted documents Real or physical evidence: properly admitted objects Real or physical evidence: properly admitted objects Demonstrative evidence: properly admitted charts, graphs, diagrams, computer simulations, etc. Demonstrative evidence: properly admitted charts, graphs, diagrams, computer simulations, etc.

Direct and Circumstantial Evidence Direct evidence is evidence that, if believed, establishes a relevant fact without the need for any inference. Direct evidence is evidence that, if believed, establishes a relevant fact without the need for any inference. Circumstantial evidence is indirect evidence that requires an inference or conclusion to prove a relevant fact. Circumstantial evidence is indirect evidence that requires an inference or conclusion to prove a relevant fact.

Types of Information First-hand knowledge is something known to a person because they perceived it with one of their senses. First-hand knowledge is something known to a person because they perceived it with one of their senses. Second-hand knowledge is something known because someone else told them or they read it somewhere. Second-hand knowledge is something known because someone else told them or they read it somewhere.

Areas Where Rules of Evidence Help Paralegal Investigators Planning and carrying out effective informal investigations Planning and carrying out effective informal investigations Putting discovered information in admissible form Putting discovered information in admissible form Drafting formal discovery requests and responses Drafting formal discovery requests and responses Drafting affidavits or declarations for use in pretrial motions Drafting affidavits or declarations for use in pretrial motions Planning the evidence to be offered at trial Planning the evidence to be offered at trial Assisting the lawyer at trial Assisting the lawyer at trial

Most Widely Recognized Privileges In addition to the attorney-client privilege, other privileges include: In addition to the attorney-client privilege, other privileges include: trial preparation materials trial preparation materials physician-patient privilege physician-patient privilege psychotherapist-patient privilege psychotherapist-patient privilege marital (spousal) privilege marital (spousal) privilege spousal testimony privilege spousal testimony privilege privilege against self-incrimination privilege against self-incrimination

Rules of Evidence for the Investigator (Part 2) KPIs: KPIs: basic rules of evidence and how they apply to interviewing and investigating work basic rules of evidence and how they apply to interviewing and investigating work the admissibility of evidence for alternative reasons the admissibility of evidence for alternative reasons

The Hearsay Rule Hearsay is defined by FRE 801(c ) as “a statement, other than the one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Is a Statement Hearsay? Ask yourself the following questions to determine whether testimony might run afoul of the hearsay rule: Ask yourself the following questions to determine whether testimony might run afoul of the hearsay rule: Is it a statement? Is it a statement? Is it a statement made out of court? Is it a statement made out of court? Is it a statement offered to prove the truth of the matter asserted? Is it a statement offered to prove the truth of the matter asserted? Is there a recognized exception for the statement? Is there a recognized exception for the statement?

Exceptions to the Hearsay Rule Present sense impression Present sense impression Excited utterance Excited utterance Statements made for the purpose of medical diagnosis or treatment Statements made for the purpose of medical diagnosis or treatment Recorded recollection Recorded recollection Statements used to refresh memory Statements used to refresh memory Business records Business records

Exceptions to the Hearsay Rule Public records Public records Former testimony Former testimony Statement against interest Statement against interest Discretionary exceptions Discretionary exceptions

Exclusions to the Hearsay Rule Statement offered for non-hearsay purpose -- not to prove the truth of the statement Statement offered for non-hearsay purpose -- not to prove the truth of the statement Admission by party opponent Admission by party opponent

Exceptions to the Ban on Character Evidence Where the character is an essential element Where the character is an essential element The criminal accused The criminal accused Other crimes, wrongs or acts Other crimes, wrongs or acts Reputation for truthfulness Reputation for truthfulness Conviction of a felony or other crime involving dishonesty Conviction of a felony or other crime involving dishonesty

End of Foundations of Investigating End of Foundations of Investigating