Deck 3: Evidence and Investigation

Question 1

Why does an investigator need to understand the relationship between investigation and evidence law?

Answer 1

An efficient investigator uses a fundamental knowledge of the rules of evidence to evaluate the usefulness and admissibility of the evidence as it is gathered. Knowledge of the rules also guides the investigator to the most valuable evidence, thus saving time and money.

Question 2

What are the purposes of taking a statement and why should a paralegal review a statement immediately after it has been taken?

Answer 2

The purpose of taking a statement is to preserve information of potential witnesses and get leads from those witnesses. After the interview, review the interview notes and check the witness's statement for inaccuracies, typos, and leads that should be followed immediately. Make note of the leads and enter them on your deadline calendar. Unpursued leads can be damaging to the case and embarrassing to the paralegal and the firm.

Question 3

The following is a list of possible evidence in Case I, the Forrester case. Based on your understanding of the necessary elements in a negligence case from Chapter 2, the information in this chapter, and the rules of evidence for both the federal (F) and your state courts (S), indicate whether the listed items of evidence are admissible (A) or inadmissible (I). State any applicable reason and rule number.

Answer 3

See completed evidence table. Please provide answers for your state rules.

Question 4

Summarize Ms. Schnabel's statement to be included on the Witness Information Cover Sheet for the case file.

Question 5

Why is it important to interview a witness as soon as possible after the accident?

Question 6

What are the rules of evidence (for federal and for your state) governing the following areas?

Question 7

What information should go into a written investigation plan?

Question 8

Place a reference note in your systems folder, including page numbers, to the techniques for conducting a witness interview stated in this chapter. Draft your own list of tips for taking and drafting an effective witness statement, and place it in your systems folder.

Question 9

Define preponderance of evidence and clear and convincing evidence.

Question 10

Describe useful techniques in interviewing a witness. (Review the appropriate section of Chapter 2.) How does an interviewer gain the cooperation of a witness?

Question 11

Discuss the major ethical and related concerns (including attorney's work product) that are particularly applicable to investigation.

Question 12

Define and give examples of testimonial, documentary, real, and demonstrative evidence.

Question 13

List some good techniques for finding a witness and for finding an expert witness.

Question 14

Draft a detailed checklist for preserving evidence and file it in your systems folder.

Question 15

Why are the elements of a cause of action important to planning an interview?

Question 16

What is relevant evidence and when will relevant evidence not be admissible?

Question 17

Describe the purpose for preserving evidence and some good techniques for preserving evidence.

Question 18

Sketch the Forrester accident scene from the viewpoint of Mrs. Schnabel.

Question 19

What are the six stages in planning an investigation?

Question 20

Identify in your systems folder some of the techniques for locating witnesses and experts listed in this chapter.

Question 21

Citing the relevant Model Rules of Professional Conduct, what should you do under the following circumstances?
a. Your firm is representing a federal judge in a civil suit. You have come to admire this judge and know that the firm believes he is a very valuable client. One night you are working with the judge on his case. There is a letter in the file that the judge received from a third party. The judge asks you to change one word in the letter because he knows that is what the party said he meant in the first place. The judge has offered you a terrific federal job at the close of this case. What would you do?

Question 22

Define evidence law.

Question 23

What is the difference between direct and circumstantial evidence?

Question 24

How should a paralegal gather medical and employment information about the client? What recommendations should be followed?

Question 25

Prepare a litigation hold letter for the Forrester case. Identify those individuals or entities that should be included as recipients of your letter.

Question 26

What needs to be done to plan a witness interview?

Question 27

What are the purposes of investigation?

Question 28

Define presumption of evidence.

Question 29

Draft a document retention policy that could be used by your law firm. Remember to include e-mail and texts in your policy.

Question 30

Identify the different types of demonstrative evidence that may assist in the preparation of the
Forrester case and what evidentiary value it would have for the jury.

Question 31

What are some typical sources for the rules of evidence?

Question 32

What are the major methods of investigation, and what should be considered in selecting a particular method?

Question 33

What indicators suggest that computer-generated evidence will be relatively easy to authenticate?
More difficult to authenticate?

Question 34

Why is it essential to immediately check documents that have been returned pursuant to the paralegal's request?

Question 35

How does an interviewer gain the cooperation of a witness?

Question 36

Why is it necessary to plan an investigation thoroughly?

Question 37

What is the purpose of the information in Exhibit 3.5? How do you identify potential sources of information and evidence in a particular case? Review the categories of Web sites in Exhibit 3.6.

Question 38

Draft the litigation plan for the Forrester case. Include in the plan the following:
a. Potential causes of actions and defenses;
b. List of potential evidence in the case;
c. Methodology to acquire evidence listed in section (b) above;
d. Ways to ensure that the evidence acquired is preserved;
e. List of potential witnesses and summary of possible testimony
Be complete and creative in preparing the litigation plan.

Question 39

What requirements must be met for evidence to be admissible?

Question 40

Prepare a sample template for a litigation hold letter that can be used by your law firm in civil
litigation cases. template.

Question 41

Draft a detailed checklist for preserving evidence and file it in your systems folder.

Question 42

What tools would you need-and for what purposes-to investigate the accident scene in Case II?

Question 43

Following the directions of your instructor and the procedure set out in this chapter of the text and Chapter 2 on interviewing, conduct an interview with Robert Warren, a witness to the incident in Case II. After the interview, prepare a witness statement according to the recommended procedures and tips covered in this chapter.

Question 44

Place an example of an investigation plan into your systems folder.

Question 45

List the purposes of investigation at the beginning of the investigation section of your systems folder.

Question 46

Citing the relevant Model Rules of Professional Conduct, what should you do under the following circumstances?
a. You need to see one last critical witness who you are fairly sure will not speak with you if you tell the witness you are representing Ann Forrester. You arrive at the witness's apartment and she answers the door. What should you do?

Question 47

Write five interview questions to Jason Hackett, friend of Sean Coleman, and the specific issues in
Case III that they will probe.

Question 48

Place these items in your systems folder: Checklist for Witness Interview, Witness Information
Cover Sheet, and a brief description of how to create interview questions.

Question 49

Make a list of leads for further investigation provided by the interview with Ms. Schnabel in the text or with Mr. Warren in Application Assignment 4 in the

Question 50

What are the major requirements and limits of relevancy?

Question 51

The following is an additional list of possible evidence in Case I. Based on your understanding of the necessary elements in a negligence case from Chapter 2, the information in this chapter, and the rules of evidence for both the federal (F) and your state courts (S), indicate whether the listed items of evidence are admissible (A) or inadmissible (I). State any applicable reason and rule number.

Question 52

Place copies of Exhibits 3.8, Request for Medical Records (Cover Letter); 3.9, Authorization to Disclose Health Information (HIPAA); and 3.:12, Accident Scene Checklist, in your systems folder. Add any suggestions from class lectures or discussion.

Question 53

Following the steps and examples of planning an investigation as presented in this chapter, create an investigation plan for Case II. Develop the elements and facts to be proved, the sources, and the methods to be used in a format similar to that in Exhibit 3.7.

Question 54

Make a list of three possible items of relevant evidence in the Ameche case (Case II) and in the Briar Patch Doll case (Case IV). Indicate the fact of consequence for each item and whether that item would be direct or circumstantial evidence, and whether it would be testimonial, documentary, real, or demonstrative.
Ameche
EVIDENCE:
FACT:
TYPE:
EVIDENCE:
FACT: TYPE:
EVIDENCE:
FACT:
TYPE:
Briar Patch Dolls
EVIDENCE:
FACT:
TYPE:
EVIDENCE:
FACT:
TYPE:
EVIDENCE:
FACT:
TYPE:

Question 55

How does a paralegal draft a good statement?

Question 56

Locate a copy of the Federal Rules of Evidence. Note how a photocopy of the table of contents for these rules can serve as a quick reference guide to evidence. You may choose to photocopy the table of contents to the rules of evidence and write the state equivalent next to each rule. Record whether evidence is admissible (A) or inadmissible (I). Place the reference guide in the investigation section of your systems folder.

Question 57

Read those Model Rules of Professional Conduct cited in this chapter. Also read FED. R. CIV. P.
26(b)(3), "Trial Preparation: Materials" and the state equivalent. Draft a guide titled "Ethical Applications to Investigation," and write out a one- or two-word topic head for each applicable rule and cite it. Then place the guide in your systems folder.

Question 58

Drawing on the section on conducting an interview, draft a checklist of considerations for conducting a witness interview and place it in your systems folder.

Question 59

Summarize either Ms. Schnabel's or Mr. Warren's statement to be included on the Witness
Information Cover Sheet for the case file.

Question 60

List four methods for recordings the statement of a witness and note advantages or disadvantages for each.

Question 61

Professional ethics require paralegals to

A) make well-prepared statements to the press.
B) give loyalty to the client top priority.
C) refrain from obstructing opposition access to evidence.
D) ignore fraudulent behavior of clients if it is privileged.

Question 62

Circumstantial evidence can be valuable to a case.

Question 63

You should always answer the questions of a witness about a case.

Question 64

To be admissible, evidence must be

A) direct.
B) cumulative.
C) material.
D) privileged.

Question 65

It is best not to phone an evasive witness before you visit.

Question 66

A public relations expert is a good example of a third-party consultant to whom the attorney-client privilege might not apply.

Question 67

When interviewing witnesses, paralegals should

A) ask questions that focus on elements of substantive law.
B) bring several together to save time.
C) not worry about planning and go with their instincts.
D) never pay them a fee.

Question 68

Important things to remember when requesting records include all of the following except which one?

A) Keep the name of the client's physician's nurse on file.
B) Narrative reports are often expensive.
C) Information needs to be checked and corrected immediately.
D) Follow-up letters are irritating to busy doctors and should be avoided.

Question 69

A chain of custody is a locking device used to prevent removal of valuable evidence.

Question 70

A third party present at an interview can verify all of the following except that

A) the witness read the statement.
B) the witness statement is true.
C) no improprieties occurred.
D) the statement reflects the words of the witness.

Question 71

When drafting the statement of an uneducated witness, it is best to change the language to sound more sophisticated.

Question 72

Once drafted, the witness statement should not be changed.

Question 73

Evidence is best gathered from key witnesses through a

A) modem.
B) personal interview.
C) professional research service.
D) letter.

Question 74

Hearsay is admissible in all of the following except

A) res gestae statements.
B) quote from witness's conversation.
C) statement made to receive medical diagnosis.
D) statement of reputation.

Question 75

A well-drafted witness statement should

A) be duplicated so the witness can have a copy.
B) note facts rather than beliefs.
C)
C) include the names of all witnesses mentioned.
D) b and

Question 76

A paralegal must identify position, employer, and purpose, even when speaking to unfriendly witnesses.

Question 77

Care in drafting an investigation plan is important because it

A) must be authenticated by a judge.
B) must conform to Rule 6(a).
C) is a record for billing.
D) saves time and resources.

Question 78

Self-authenticating evidence includes

A) federal documents.
B) blood test results.
C) videotapes.
D) tire tread marks.

Question 79

The more evidence collected to prove a single point, the better.

Question 80

You have no need to collect evidence that does not support your client's case.