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8.3
Duties of the Paralegal Investigator
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INTRODUCTION
There are many functions a paralegal may perform that fall into the category of investigation. In a law firm, investigation is very closely related to discovery. Much of the work a paralegal does when investigating is to locate discoverable information and witnesses.
Identifying Witnesses
Sometimes when starting on a case a paralegal (or attorney) struggles with where to begin, or what witnesses may be found. There are times when, at first, it seems there are not witnesses to interview. Your job is to scour the available information to find potential information or witnesses.
The most oft overlooked source for potential witnesses in a case are the pleadings, correspondence, and other documents already in the client file. Don't overlook these.
The amazing thing is that once the ball starts rolling, one witness leads to more witnesses, who in turn lead to even more witnesses. Trust the process.
Types of Statements
Written statements
A written statement will be either formal (prepared in advance or after the interview and typed) or informal (usually handwritten and spur-of-the-moment).
Recorded statements
Audio or video taped statements may be taken, or the paralegal may have the interview transcribed, and ask the witness to sign the transcript. The signature turns the transcript, essentially, into a formal statement.
Court reporter statements
A statement made in the presence of a court reporter, who swears the witness in prior to the statement being made. Similar to a deposition, but only one side is present, and therefore does not carry the weight of a deposition.
Witness considerations
When interviewing a witness, keep these points in mind:
Credibility
Are there any other forms of evidence or other testimony that will validate what the witness will testify to? This will help establish the witness's credibility.
Competence
Are there any concerns regarding the competence of the witness? If yes, how can these be addressed? Are there available means to bolster (or attack) the competence of the witness you are interviewing?
Believable?
The paralegal must determine whether the witness presents believable testimony, and transmit this impression to your attorney.
Attitude
What is the demeanor of the witness? Relay your evaluation and impressions to the attorney.
Personal knowledge
Make special note of the points about which the witness has direct testimony.
Motivation
Be sure to evaluate and probe whether the witness has any special motivations.
Mental conditions
Don't overlook this possibility. It is embarrassing for a paralegal to put hours of work into a case, only to have it determined that the witness or client has been experiencing mental problems. This, of course, will affect competence.
Appearance
Make detailed observations regarding the witness's appearance, and make a note if you feel it would be necessary to educate the individual on how to dress for court.
Age
Relevant only if the witness is very old or very young.
Techniques for taking written statements
Of all the points provided for , the most important is to have prepared questions prior to the interview. Keep each set of questions following each interview, organize them by topic, and eventually you will have an impressive form book of interview questions.
Mechanics of all Statements
This section discusses the fundamental requirements of virtually all witness statements. Of special importance is the Introduction and Subscription.
Techniques for Taking Recorded Statements
Taking a tape recorded statement is good strategy, but some definite rules apply. This section of the manual highlights these considerations. First and foremost, never secretly record an interview!
Court Reporter Statements
Not particularly common. Similar to depositions, but with only one party present to ask questions.
Lecture Notes . . .
WITNESS STATMENTS
The following are some suggestions for taking witness statements. Your firm will have its own preferences, so follow the instructions of your attorney.
The most important difference between witness statements is formal v. informal statements. Formal statements are usually typed, and are often notarized. Informal statements are almost always handwritten, as they are usually created because a witness has said something of importance that was unexpected during an interview. The paralegal wants to "lock the witness in" to their statement, so she/he writes it down.
Try not to make a big deal of the statement. Don't let the witness know that you find the statement important. The best way to handle it is to tell the witness that you usually wrap the interview up with a quick list of the points made during the interview. Then jot down five or six points, including the critical one. Have the witness sign or initial the document.
Paralegal Perspective . . .
FORMAL v. INFORMAL STATEMENTS
About the only reason I can remember taking an informal witness statement is when the witness being interviewed said something surprising, unanticipated, and important. Taking an informal statement locks the witness in to the statement, so it is usually used only if the information benefits your client. Be careful with what you decide to put in writing. As a rule, if the witness is saying something that harms your client's case, don't cement it in writing.
Commonly Asked Questions . . .
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Internet Searches . . .
Legal Site Search
For local information, try using one of the search boxes on the right side of this page in the textbook, and type the following query:
law legal (your county) (your state) information
Even using Google, Yahoo, or Bing will result in some relevant sites that you may want to save to your favorites.
Exercises
Investigation (Progress Check)
Witness Interviews (Progress Check)