8.2

The Paralegal As Fact Finder

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INTRODUCTION

Investigation as performed by a paralegal must stay within the boundaries set by ABA Ethics (covered earlier).

When a paralegal acts as investigator, it is important to keep your role in perspective. You are not "Magnum, P.I." You work directly under the supervision of an attorney and therefore are bound to the same ethical standards they are.

Misrepresentation
Despite what you may see on television, or what private investigators may do, a paralegal may not misrepresent his or her identity. The paralegal must identify him or herself as a paralegal who works for an attorney.

Legal Advice
In an investigative role, there may be times when you are asked questions of which the answers themselves would constitute legal advice. Of course, you must be careful not to answer such questions, and try to avoid putting yourself in such a situation. In fact, there are times when even advising someone to obtain legal counsel could constitute legal advice. Be cautious.

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Lecture Notes . . .

THE PARALEGAL AS INVESTIGATOR
Your success as a paralegal performing the duties of an investigator will highly depend on three things:

Attitude
You need to be a crusader for your client's right to effective representation. You are part of that representation. If anyone attempts to limit your access to information your client has a legal and ethical right to, you should be indignant. Even self-righteous. No one should stand in the way of those rights. This attitude will pay huge dividends.

Understanding the Role of Investigator
Your job as a researcher will be to find the law. Your job as an investigator, however, is to find relevant facts that will affect the litigation. Don't worry about admissibility as you are collecting facts. Having a mind-set that includes whether certain evidence will be admissible will hinder your ability as an investigator. Let the attorney worry about admissibility later. There are certain ways of getting evidence admitted that, as paralegals, we are not competent to determine.

Knowing the Limitations of an Investigator
You can not represent yourself as someone you are not. Once you identify an individual as a potential witness or codefendant, you MUST identify yourself as a paralegal working for an attorney.





Note: You are not required to inform the person you are talking to as to the identity of your client. This information is technically privileged. Ask your attorney whether it is alright to identify the client. There may be times when the lawyer does not want this information shared with others.

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Paralegal Perspective . . .

INVESTIGATION
I had never taken a class in investigation. But in my first nine or so months as a paralegal I had figured out that the pretrial tasks related to discovery were, basically, fact finding mechanisms. And investigation is all about finding facts! So, when an opportunity presented itself to try to find a defendant, I took it on. More accurately, I decided to try and find the person without telling anyone, so that if I failed miserably, I wouldn't look like an idiot! This is what happened:

An attorney took me for a drive to look at a piece of property. The house in question had been filled with gas fumes, apparently from an underground water source. We drove all around the community, looking for gas stations that could have caused the problem, but all we saw was a convenience store and a self-service car wash.

Now, I wish I could say that I was the one who noticed the large, round metal plates laid in the concrete in front of the car wash, but it wasn't. The attorney spotted them. It turned out that the car wash had once been a gas station, and that the station had inadequately sealed the abandoned tanks. After a couple of weeks of trying, and failing, to locate the owners, we were up against the wall. The registered agent listed with the Secretary of State's office was not accurate. None of the officers were at the listed addresses (in Minnesota). But it occurred to me that someone had to be emptying the coin operated machines. I asked nearby proprietors when the machines were generally emptied. The answer was early morning. So, without telling anyone, I planned to get up at four-thirty in the morning every day for a week. (I didn't tell anyone because I was afraid they would thing it was a stupid idea!)

Well, it only took till the second day, and I got the vehicle tag number who was emptying the coin machines. It led us to one of the officers of the business, and we were thus able to serve the defendant before the statute of limitations ran out. From that point on, I started getting investigative assignments from the attorneys.