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Investigation

(aka “Informal Discovery”)

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Preliminaries

Make certain that the other person with whom you are communicating knows what you mean by “informal discovery.”

The instructor uses the term interchangeably with “pre-trial investigation.” So do most lawyers. However, here is how a group of Texas lawyers defined it:

“The voluntary response to a reasonable request to produce information or documents or to answer questions relevant to a dispute.”

This is a much narrower definition/description of “informal discovery” than what most lawyers (including your instructor) use.

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Formal or Informal?

So, what is the relationship between formal and informal discovery?

BOTH are essential to an adequate discovery plan.

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Formal or Informal?

Interviewing a witness helps an attorney decide whether to depose that witness, and possibly whether to expedite that deposition.

Pre-deposition interviews make for (usually) excellent depositions.

Interviews (alone) are not enough, as:

a) Testimony not preserved for trial;

b) Cannot impeach a witness at trial based on what he/she said during an interview (not sworn testimony);

c) Interviewing a witness “may undermine that witness’s effectiveness at trial by giving the impression of bias or interference by counsel.” (However, this last factor has not been a problem for your instructor in 25+ years).

Formal or Informal?

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Formal or Informal?

Attorneys Joshua Goodman and Farley Neuman got it right in their article “Conducting Discovery Beyond the Code.”

“Three of the most common methods of informal discovery are interviewing witnesses, obtaining publicly available information and documents, and conducting surveillance. These discovery tools have three principal advantages over formal discovery:

• They tend to be less expensive than formal discovery;

• They provide greater flexibility than formal discovery; and

• They allow one party to obtain information without providing it to all other parties.”

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Formal or Informal?“Lawful investigations sometimes can accomplish as much as formal discovery and at less cost. For example, evidence may be obtained from public records or Internet databases, or by interviewing nonparty witnesses, or inspecting physical objects or public places. Such investigations are not subject to discovery limitations and may yield evidence of which the opposing party is unaware.”

The “Bible” on California Civil Procedure Before Trial by Judges Weil (Ret.) and Brown (dec.).

(Instructor takes the opportunity to tell “war stories” in class)

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Informal Discovery

More advantages:

The discovery “hold” and “cut-offs” do not affect a party’s right to conduct informal investigations.

For example: To interview non-party witnesses, to visit premises open to the public, to obtain copies of public records, etc.

(more war stories)

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This is Fun !

But more importantly:

What Does This All Mean?

It means that:

Investigation should proceed before, during and, if necessary, after formal discovery.

Counsel (and their paralegals) should always proceed as if the court will demand completion of discovery much earlier than counsel would like – in addition, aside from the court’s timetable, nature takes its toll!

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Types of Witnesses

Hostile

Skeptical

Neutral/Indifferent

Friendly

Combination

Who is a witness?

Any person who can provide information about a matter. These are all types of witnesses:

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Example of how investigation is such a key part of a case preparation (using an insurance coverage dispute over a pollution claim (environmental insurance coverage litigation)):(Instructor’s specialty)

1. Client2. Insured’s counsel.3. Government agencies.4. Local newspapers/broadcast media.5. Parties in actual or anticipated litigation against the insured.6. Insured’s current employees – BE EXTREMELY CAREFUL! (In fact, it

is a prudent step to forego such interviews).7. Ex-employees.8. Errant investigator cases – good example of what NOT to do.9. The basics: Tell the truth and disclose the essentials – namely:

a) Who you areb) Who your client isc) That you are engaged in litigation against Widgod) The nature of the lawsuite) That the interview is purely voluntary.

Case Preparation

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Best known example of investigation in insurance coverage disputes:

Shell Oil’s pollution coverage litigation against its insurers – known in insurance coverage circles as the “dead duck evidence.”

(yet more “war stories”)

Dead Duck Evidence

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Paralegal as an Investigator

The Three Cardinal Rules:

1. Tell the truth.

2. Tell the truth again.

3. Tell the truth some more.

This can be fun!

Other important components of your M.O.:

1. Be prepared (“off the cuff” preparation is below a paralegal’s standard of due care;

2. Choose a proper location for interview, if possible .

3. Dress appropriately.

4. Obey all laws.

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No Crooks, Please

Never, Never be part of a crime.

The “Nuremburg Defense” is no defense.

Don’t believe me?

Follow the Anthony Pellicano/Bert Fields/Terry Christensen scandal that is rocking Hollywood.

(to be discussed in class)

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Skip TracingDon’t spend $$$ if you can easily find him/her yourself.

Jeez, you will feel dumb, if the witness is listed in local telephone directory!

Cardinal Rule When Dealing With

Private Investigators:

Tell them EVERYTHING must be KOSHER !

(Cross-refer to previous slide)

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Sleuthing Online

Search Engines:

Non-legal: Google, Askjeeves, Lycos, Yahoo

Legal: LexisNexis, Westlaw, versuslaw, loislaw, jurisearch, findlaw, etc.

Try them all

(more war stories – just hang on in there!)

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Taking Statements

To “statementize” or Not Statementize, that is the question.

Pros and cons.

Do not make the call – get specific guidance from your attorney.

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Title Searches

Not your job (and not your attorney’s job) in California.

Title companies do this.