Fact Investigation Tips for Paralegals

You may not think of yourself this way, but you are, in many respects, the fact investigator-the “snoop at large”- for a case. Like the fire investigator digging through ash and debris to determine the cause of a fire, the paralegal digs through mountains of case documents to find the facts surrounding a case. In most cases, identifying key facts surrounding allegations and issues is your mission.
Even before a case is filed, there is much legwork to be done. You may find yourself sifting through insurance claims, appraisals, police reports, witness statements, real estate transactions, or other documents you uncover, or that are piled on your desk. The litany of things to look for can resemble a 1,000-point checklist.
Where do you start? What do you need to know? How much time do you have? Do you actually have a case? If your firm employs a private investigator, what has he/she uncovered? With dozens of questions competing for your attention, your first charge is to get the investigation organized.
Take a few moments to develop an outline of what you already know and what you need to know. “A “brainstorming” approach-no idea is a bad one is a good way to start, then review the plan to see where like questions and issues exist. Make sure the plan is realistic before proceeding.

The ICU Approach
After establishing your plan, use the “ICU” approach to fact investigation-”I” is for intuition, “C” is for creativity, and “U” is for ultimate use of legal research skills.
Intuition is a sixth sense that investigators seem to have. It is a gut feeling that doesn’t let you alone, and you should never discount the power of this intuition.
If you are drawn down a path, follow it for a spell and see if it leads to what you are looking for. Thoughts like “I’ve seen this before,” or “this reminds me of another case,” may occur. If so, check the law firm’s database, or ask around the office to see if a fellow paralegal or attorney has worked on a similar case or has some knowledge about the issues.
Check the firm’s law library for guidance on your hunches. Check statutes, regulations, treatises, and other materials. Read the annotations, and do a sampling of opinions. In each opinion, there are citations to other opinions-a beneficial chain reaction.
Check hard copy as well as online media articles for information that relates to the incident. You never know who will be identified or what information you will find that can aid your efforts. Be sure to verify the articles for accuracy, and do not consider them authoritative, but as investigative tools.
Consult with your supervising attorney about your hunches and information you’ve found. Don’t be discouraged if the attorney initially gives you a look that implies you are from another planet. I once took this approach on a case where nothing seemed to be on point, and the investigation was like trying to find the proverbial needle in a haystack.
I advised the attorney of my exploratory progress, and pointed out that sometimes it’s what contrasts with the desired results that can lead to the answers. He reluctantly agreed to read the materials, and called later to say that although my speculative approach was a bit unconventional, I should go for it. The approach turned out to be well worth the effort, and the case was deemed in the client’s favor.
Creativity is for not only artists and musicians. Being creative when conducting fact investigations can lead to areas that may initially appear almost absurd, but which end up being directly on point. Questions such as, “what would cause a thing like this to happen,” or, “is it possible that such-and-such can exist?” will stir creative juices in your mind to help your search.
Process your thoughts creatively. Use a bit of humor such as considering how Detective Boren on television’s Law and Order: Criminal Intent, might conduct this fact investigation. (This character, for those of you who aren’t familiar with the show, has a peculiar but effective way of looking at the big picture and figuring everything out).
You’re on a mission, but not a mission impossible. Employ your preferred style of creativity, but keep the big picture in mind. Narrowing your search too soon can waste valuable time going down blind alleys and can be frustrating, especially if you are in unfamiliar territory.
Ultimate use of legal research skills-is what legal assistants first rate are at. You have these skills, so kick them into action. Does the firm subscribe to an online research service such as LoisLaw or Lexis? If not, you will need to look elsewhere, such as the Internet, for information.
Try Web site search engines such as Google, Dogpile, or even Ask Jeeves if that is what it takes to succeed in your general searches.
Searches that are more refined can be done at findlaw.com, megalaw.com, law guru. com, hierogamos.com, or law.comelLedu. The Cornell Law School Web site has links on its homepage that are particularly useful.
If you are searching for product information, use Web sites such as recalls. com, nhsta.gov (for motor vehicles) or cpsc.gov. Try the manufacturers’ Web sites if the particular products at issue are identified. If you need to understand how a certain product works, try howstuffivorks.com where the information is somewhat limited, but worth a look, especially for vehicles and appliances. You will automatically refer to your personal favorite Internet sources that have been good to you in the past. By all means, use them.
Be aware that Internet searches can consume your attention and your valuable time. There is a chain reaction to Internet research when you click on a link and find 20 additional sites with more links to more sites with more links, etc. You may think you’ve hit the mother lode, but these exponentially exploding hits will quickly overload you. Don’t allow yourself to be sidetracked, but limit your search to the first five to 10 hits that are best aligned to your search.
Motor vehicle records, real estate deeds, general criminal records, and other public records are readily accessible on the Internet. There was no charge for this access to public records in the past, but today, once you get past very basic information, the key information or history you seek may come with a charge. Check with your local and state agencies for access to public records.
Will you need to file a request under the Freedom of Information Act, or a state right-to-know request? Do you need a subpoena to obtain certain records? If you are unsure, call the governmental agency to obtain information on how to properly file the request. Be aware that such requests should strictly follow agency guidelines, and that the response to such requests is often slow in receipt, or even denied.

Timeline is Key

The timeline serves as a snapshot of the events, occurrences, and activities surrounding an incident. For example, you may know timeframes such as:
  • 1. The client took occupancy of a new home on October 1,2003.
  • 2. Power surges began to occur.
  • 3. Approximately one week before the fire, repairs were made to the electrical system.
  • 4. Despite repairs, power surges continued.
  • 5. The electrical subcontractor was not receptive to the client’s follow-up calls.
  • 6. A fire occurred at approximately 9:15 a.m., March 15,2004, destroying the home and contents.
In most cases, many of these questions may be answered generally during the pleading phase, and more specifically, through the discovery phase. Approximate dates are acceptable until you obtain dates that are more definitive. Ask the client and witnesses to help with information in this regard. Check the file for correspondence, e-mail, logs, invoices, etc., for dates and associated activities. The timeline is a document-in-progress, so add to or revise it, as information is uncovered.
As you conduct your fact investigation, remember to establish checkpoints. Gather a certain amount of information, then organize it, review it, and decide if you have enough to substantiate or counter the allegations? Determine what else you need to do and what don’t you need. Taking the fact investigation in steps makes the job much easier.
Make sure you recognize when to draw the line in your fact investigation so the process won’t engulf you at the expense of your other paralegal responsibilities. Make course corrections as needed, and consult with your supervising attorney about your progress. You might already have more than enough information to get the ball rolling. Fact investigation will proceed up to the time of trial, and perhaps well into the trial. Following these steps will benefit your efforts, yield some great information in support of a client, and give you a professional boost for a mission well accomplished.

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Patricia J. Gustin, CLA, CFEI, is a freelance paralegal and fire investigator based in Harrisburg, PA. She specializes in assisting expert witnesses and law firms in both criminal and civil matters involving product liability, personal injury, negligence, arson, and industry codes and standards. She is also a community mediator, trainer, and (a nonlawyer representative before the Social Security Administration and a project coordinator for the Dauphin County Bar Association) past Vice President for Education of the Keystone Legal Assistant Association, and a past member of NALA’s Continuing Education Council. She has a BA degree in Business Administration from Pennsylvania State University.

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