Chapter 8

cause of action

(1) A legally acceptable reason for bringing a suit. A rule that constitutes a legal theory for bringing a suit. (2) The facts that give a person a right to judicial relief. When you state a cause of action, you list the facts that give you a right to judicial relief against the alleged wrongdoer.

bias

(1) An inclination, tendency, or predisposition to think or act in a certain way. (2) Prejudice for or against something or someone. (3) A danger of prejudgment.

deep pocket

(1) An individual, a business, or another organization with resources to pay a potential judgment. (2) Sufficient assets for this purpose. (The opposite of shallow pocket.)

deposition

1) A method of discovery by which parties and their prospective witnesses are questioned by the opposing party before trial at a location other than a courtroom. (Judges are not present during depositions.) The person questioned is called the deponent. (2) A posttrial method of discovery by which the winning party seeks to uncover facts that will help it enforce the judgment it obtained against the losing side

retainer

1) The act of hiring or engaging the services of someone, usually a professional. (The verb is retain.) (2) An amount of money (or other property) paid by a client as a deposit or advance against future fees, costs, and related expenses of providing services.

attentive listening

Affirmative, ongoing steps taken by an interviewer to let an interviewee know that you have heard what he or she just said and that you consider the meeting with him or her to be important.

small talk

Always begin a legal interview with _______ ____

attorney lien

An ______________ ______ is the right of an attorney to hold a client's funds or property (retaining lien) or to keep a part of funds coming to the client (a charging lien) until the attorney's fees and costs have been paid. The lien, however, does not cover the client's file.

true

An attorney can decline a case if the client may not be able to afford the anticipated legal fees, and the party the client wants to sue may not have enough cash or other resources to pay a winning judgment. (such an opponent is said to lack a deep pocket): True or False?

overview question

An open-ended question that asks for a summary of an event or condition

evidence

Anything offered to establish the existence or nonexistence of a fact in dispute. Separate determinations must be made on whether a particular item of evidence is relevant or irrelevant, admissible or inadmissible

goal

At the beginning of a legal interview, state the _____ of the interview and let the client know that you will be taking notes

intake memo

At the end of the interview, summarize anything the client asked you to do, or vice versa and begin drafting an __________ _______

objective

dispassionate; not having a bias

followup interviews

paralegals are more likely to do occasional ___________ __________________ after the attorney has conducted the main interview

timeline

Drawing a ______________ can be helpful when a story involves some complexity. During the interview, draw a rough sketch of a timeline based on the facts given to you and show it to the client. A diagram such as this gives the client a visual overview of what occurred and may prompt further questions and clarifications.

absolutely certain, substantially certain, fairly certain, having a vague certainty, unsure, only a guess

During an interview, as the client answers questions, make sure to note how certain the client is of each answer. What are the parts of the scale of certainty?

questions or concerns

Early in an interview, find out if the client has any immediate ______________ or ______________

true

In most states, the client's file must be returned upon request even if attorney fees are still due: True or False?

initial client interview

In this type of interview the attorney-client relationship is formally established and legal problems are identified as the fact-collection process begins

second

It is a sign of courtesy to reintroduce yourself at the beginning of a __________ meeting. Finally, never call a client by his or her first name unless expressly invited to do so by the client. Furthermore, do not interpret a client's calling you by your first name as an invitation for you to do the same with the client's name

relevant

Logically tending to establish or disprove a fact. Pertinent. Relevant evidence is evidence having any tendency to make the existence of a fact more probable or less probable than it would be without the evidence

discovery

Methods used by parties to force information from each other before trial to aid in trial preparation. Examples of such devices include interrogatories and depositions. The methods can also be used to aid in the enforcement of a judgment.

initial client interview, field investigation, follow-up interviews, researched, settle, negotiation, trial, appeals

The _________ _______ ____________ is critical because it sets the foundation for the entire litigation process. The facts obtained from this interview are further pursued through ______ ___________________. ___________-__ _______________ are often needed to clarify new facts and pursue leads uncovered during investigation. The laws governing the facts are __________________ in a traditional law library, online, or both. The facts and the governing law are informally argued between counsel for the parties in an effort to ________ the case through _________________. If there is no settlement, a ______ is held in which the facts are formally established. Finally, the process may end with one or more ____________. Everything begins with the facts obtained through the initial client interview. A poor job done at this stage can have major negative consequences through-out the remaining steps of the litigation

flexible

The best frame of mind an interviewer can have is to be prepared but to be _____________ enough to expect the unexpected.

combination

The best practice for asking questions in interviews is to breakdown all ______________ questions into individual ones

instructions of the supervisor for an interview

The instructions of the supervisor control what you do in the interview. You may be asked to do a limited interview or a comprehensive one. be sure to write down what the supervisor wants from the interview and include those instructions at the beginning of your intake memo

interviewee

The person being interviewed

attorney-client relationship

There are several ways in which an ___________-______ __________________ is created and formalized. The main way is by signing an attorney-client fee contract aka a retainer agreement, retainer contract, contract of representation, or fee agreement.

field interview

This type of interview is conducted during investigation. The interviewer, as investigator, will contact individuals outside the office in order to try to verify facts already known and to uncover new relevant facts

follow-up interview

This type of interview occurs after the initial interview. The client is asked about additional facts and is consulted on a variety of matters that require attention, consent, or other participation

How to particularize a fact

To particularize a fact you already have: 1. Assume that what you know about this fact is woefully inadequate. 2. Assume that there is more than one version of this fact. 3. Ask a large number of who, what, where, how, when, and why questions about the fact, which, if answered, will provide as specific and as comprehensive a picture of that fact as is possible at this time. 4. The questions do not have to be asked in any set order so long as the multiple questions are asked for each fact connected to the case.

hostile

Unfriendly or antagonistic

factual comprehensiveness

A major goal of most legal interviews is to achieve _______________ _______________________

intake memo

A memorandum that contains the facts given by a client during the initial client interview and comments by the interviewer about the client and the case.

interrogatories (rogs)

A method of discovery by which one party sends written questions to another party

close-ended question

A narrowly structured question that usually can be answered in one or two words, often yes or no. Also called a directed question

wrap-up question

A question asked at the end of the interview (or at the end of a separate topic within the interview) in which the interviewee is asked if there is anything he or she thinks has been left out or inadequately covered.

chronological questions

A question designed to encourage the interviewee to describe what happened in the order in which events occurred—by date and time, step by step.

corroborative question

A question designed to verify (corroborate) facts by seeking additional or supportive facts.

multiple-choice question

A question that asks the interviewee to choose among two or more options stated in the question--AVOID THESE IN INTERVIEWS

combination questions

A question that has more than one part--AVOID THESE IN INTERVIEWS

add-on questions

A question that is added to the end of another related question, both stated in one sentence. Also called double-barreled question--AVOID THESE IN INTERVIEWS (aka double-barreled questions)

leading question

A question that suggests an answer within the question--AVOID THESE IN INTERVIEWS

Preparing for an Interview

(1) Schedule the interview during a time when you will not be rushed or constantly interrupted. (2) Schedule the interview at a location that will be private and convenient for the client. (3) Find out from your supervisor if the client has any special needs such as wheelchair accessibility. (4) Call or write the client in advance to confirm the date and place of the interview. Give an estimate of how long the interview will take. If the directions are complex, offer to send a map (hand-drawn if necessary). Remind the client of anything you want him or her to bring to the interview, e.g., insurance policies or copies of tax returns. (5) Anticipate and prepare for the client's comfort, e.g., a comfortable chair, a pad and pencil in case the client wants to take notes, and a supply of tissues. Know where you can quickly obtain fresh water or coffee after offering them to the client early in the interview. "Before the interview, read everything in the office file on the client. Bring (or copy) any documents in the file that you may want to question the client about or have the client review during the interview. (6) Have a final brief meeting (or phone conversation) with your supervisor to make sure you understand the goals of the interview. (7) Find out if the office has any checklists you should use in asking questions. If none exist, prepare an outline of about a dozen major questions you will ask the client. You will have many more questions in the interview, but you can use this outline as a guide. (8) If possible, spend some time in the law library (or online) doing general background research in the area of the law involved in the client's case to obtain an overview of some of the major terminology and legal issues. This overview may suggest additional questions you will want to ask during the interview. (9) Prepare any forms you will ask the client to sign during the interview, e.g., consent to release medical information, or authorization to obtain employment history records. (10) Have your own supplies ready for note taking. Some interviewers recommend using different colored pens so that you can switch colors when the client is telling you something you want to give particular emphasis in your notes. (11) Walk into the interview with the attitude that the client will be telling you a story that you have never heard before. Do not assume you know what the client is going to say even if you have handled many cases of this kind

default

(1) The failure to take action. (2) The failure to exercise a legal duty.

guidelines for beginning a legal interview

1. Introduce yourself by name and title. If this is your second meeting with the client, reintroduce yourself. 2. Do not call a client by his or her first name unless invited to do so by the client. Do not ask the client for permission to use his or her first name. Wait to be asked to do so. 3. Express appreciation each time the client does something the office asks, e.g., comes in for an interview, or reads and signs a document. 4. Make sure the client understands that you are not an attorney and cannot give legal advice. 5. Start at a personal level (e.g., with some small talk) rather than launching right into the main task at hand. 6. Review the goals of the interview with the client (based on the assignment from your supervisor), and provide an estimate of how long the interview will take. 7. Make the client feel that his or her case is special. Avoid giving the impression that you are engaged in anything boring or routine. 8. Never tell a client how busy you are. It suggests to the client that he or she is bothering you and might give the impression that the office is disorganized. 9. Express understanding and empathy for the client's predicament without being condescending. 10. Never be judgmental. 11. Make sure the client understands that what he or she tells you is confidential. 12. Find out if there are immediate concerns that the client wants to raise. 13. Avoid legal jargon unless the client needs to become familiar with the jargon and you provide clear definitions and explanations. 14. Let the client know you will be taking notes, and why. 15. Listen for clues to other legal and relevant nonlegal problems that the office may need to explore. 16. Begin new topics with open-ended questions 17. Spend the first few minutes obtaining an overview/outline of the entire event or transaction. Then go back to obtain the details. 18. Encourage the client to give you the facts chronologically as a story with a beginning, middle, and end. If more than one event is involved in the case, cover them separately in the same chronological way. Then go into how the events are interconnected. 19. If the client appears overwhelmed or unusually distressed, try to provide reassurance by letting him or her know that the office is actively working on the case and is doing everything it can. Do not, however, promise results or say anything that a client could interpret as a promise or even as a prediction of what the outcome of the case will be

1. instructions of the supervisor for the interview 2. evidence, procedural law, and substantive law 3. Checklists 4. Fact particularization (Fp) 5. Common sense 6. Flexibility

6 major ways to achieve focus in the formulation of questions to be asked of a client

open-ended question

A broad, relatively unstructured question that rarely can be answered in one or two words.

contingency case

A case in which clients pay attorney fees only if they win through litigation or settlement.

analogy

A comparison of similarities and differences

inference

A deduction or conclusion reached from facts

fact particularization (fp)

A fact-gathering technique to generate a large list of factual questions (who, what, where, how, when, and why) that will help you obtain a specific and comprehensive picture of all available facts relevant to a legal issue. Includes date and time details, place and environment details, observed facts and inferences, analogies, miscellaneous details, visual demonstrations, verification details, details on other participants, date and time details.

declination

A formal rejection

statute of limitations

A law stating that civil or criminal actions are barred if not brought within a specified period of time. The action is time-barred if not brought within that time.

letter of nonengagement

A letter sent to prospective clients that explicitly states that the law office will not be representing them.

engagement letter

A letter that identifies the scope of services to be provided by a professional and the payments to be made for such services

high-value law offices, office bringing class action w numerous clients, legal aid offices, gov agencies w extensive interaction w the public

Most paralegals do not do a lot of client legal interviewing, exceptions include...

thank you

Never expect the client to ___________ ____, although this may occur. You do not want the client to have the impression that you are doing the client a favor. the reverse is always true

substantive law

Nonprocedural laws that define or govern rights and duties, e.g., the duty to use reasonable care to avoid injuring someone. Procedural law consists of the rules that govern the mechanics of resolving a dispute in a court or administrative agency, e.g., a rule on the time by which a party must respond to a complaint

hypothetical

Not actual or real but presented for purposes of discussion or analysis; based on an assumed set of facts

tape-recorded legal interviews

Occasionally, your supervisor will want you to tape-record the interview. Be sure the client consents to the recording. At the beginning of the interview, say, "This is Jane Collins, a paralegal in the law office of Day & Day. Today's date is March 12, 2015. I am in our law office with Mr. samuel Donnelly. Mr. Donnelly, have you agreed to have this interview tape-recorded?" the latter question will help disprove any allegations that you secretly recorded the interview. On the tape, also state the names of other persons, if any, who are in the room during the taping.

grounds

Reasons that are legally sufficient to obtain a particular remedy or result.

RE

Regarding, concerning; in the matter of

jargon

Specialized or technical language used by a particular group or profession that may not be understood by the general public.

interviewing

Supervising attorney should introduce the paralegal to the client at the start of the relationship, prior to ______________________. The attorney should also clarify that the paralegal cannot practice law nor offer legal advice.

initial client interview, follow-up interview, field interview of someone other than client

What are the 3 main kinds of legal interviews?

heading, personal data, statement of assignment, body of memo, conclusion

What are the 5 parts of an intake memo?

12 minutes

What is the minimum amount charged for paralegal and attorney time?