Will Xiong

Outline September 7, 2016

Pretrial 19-36

Fact Investigations
o Informal investigation can be more effective than formal
discovery
More information means more power
Obtaining info earlier on and from witnesses is
more accurate and complete
Pre-action information is more accessible
Pre-action information is cheaper to acquire
Informal investigation does not need opposing
party participation or awareness
o Begin factual investigations immediately
o Create a litigation chart
Elements of claims, remedies, defenses, and
counterclaims
Sources of proof
Informal fact investigation
Formal discovery
o Winning on facts wins trials
o Sources of Proof
Clients
Interview as often as necessary to learn
everything they know about the case
Exhibits
Obtain all key documents and records
Witnesses
Identify, locate, and interview
Experts
Consult as appropriate
Opposing party
o Apply informal techniques before formal ones
Tailor investigation strategy to case type.
o Litigation Budget
Estimate amount of time to devote to the case
Establish limit of what client can spend by dividing
hourly rate into the fee limit
Estimate expected value of successful verdict and
divide by usual hourly rate
Estimate anticipated litigation costs
Ethical obligations to client take priority over
budgeting
o Client Interviews
Consider what to get and how

Inhibiting factors
Client may feel judgment from the
interviewer and in turn withhold or distort
facts
Clients may try to satisfy lawyer
expectation
Facilitating factors
Lawyer taking a personal interest
Lawyer identifies with the client
Clients may enjoy being the center of
attention
Client feels they are doing the right thing
Interview Environment
Comfort clients through informal, friendly,
and private setting
Avoid interruptions
Allocate plenty of time
Record information
o Assistant, personally, or audio
recording
Request all available paperwork from the
client
Initial interview
Be punctual and personal
Build a rapport with the client
Learn about the client
Stress importance of candor and
completeness
Give overview of the litigation process
Ask about the general nature of the
problem with open ended nonleading
questions
Obtain a detailed chronological history of
the events
Use a chronological storytelling approach
and not a checklist
Ask follow up questions on problem areas
Emphasize accuracy and completeness for
effective representation
Evaluable client credibility
Ask client to play devils advocate
Statute of limitations
Determine the statute of limitations on
potential claims
Liability
Develop liability-relevant facts

Damages
Obtain damages information for client and
all relevant parties
Client background
Use information about client to assess
credibility and test it
Parties
Learn the technical identities of each party
Determine whether to name parent
corporations
Defenses, counterclaims and third party claims
Think expansively about case weaknesses,
consider all relevant transactions
Witnesses
Question client on all possible information
sources
Records
Ask client to bring all paperwork in their
possession and keep originals, make copy
for client
Physical Evidence
Consider whether this is relevant
Other lawyers
Discover whether client has inquired with
other lawyers and whether they wanted the
case
Client goals
Determine client hopes and expectations
for the case
Avoid predicting the value or outcome of
the case
Conflicts
Determine whether any representation
conflicts exist
Next steps
Create short memo evaluating the client
and her story, note specific impressions
Determine whether to take the case, and if
so, discuss details of a contractual
relationship including fees and client
responsibilities

Essential Lawyering Skills 14-16, 51-57

Persuasion Mode
o Thinking and talking to gather and use information to
gain or maintain control

Pros: gaining control rather than insight.

Cons: oversimplified reasoning, self-serving speech, less
truthfulness
o Answers will likely be shorter and defensive
Inquiring Mode
o Open ended curiosity and exploration without regard for
consequences
o Answers will likely be longer and more informative
o May be more useful than expected
Oral Communication
o How one says something matters a great deal
o Listening means gathering information through all
senses to understand the person who is speaking
o Avoid talking out of nervousness or to prevent
uncomfortable silences or to control the situation
o While listening, ask oneself about the meaning of the
speakers words, what they might suggest, what the
speakers tone suggest, and what the speaker is not
saying.
Empathizing
o Empathy is feeling what another person feels
o Empathy is more powerful than sympathy
o Must be authentic clients can sense fake empathy and
will feel uncomfortable
Asking Questions
o Use words that would produce valuable information
rather than confusion
o Ask broad questions to figure out what might be relevant
o Ask narrow questions for specific info
o Begin with broad questions and work toward narrow
ones
o Ask leading questions when 1) you know the answer and
ask to find out other leads or 2) you want to pin
something down or extract a factual concession
o Use silence and patience to extract lots of information
o Listen for missing information and follow up
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