Fact Investigation

Book excerpt: In a successful litigation, it isn’t enough to know the facts. You must also know how to interpret and use those facts, and thoughtfully delving into the stories behind them is a crucial task if you hope to prevail for your client. Fact Investigation, by longtime NITA authors Paul Zwier and Anthony Bocchino, will change the way you approach cases for the rest of your career. Every litigator’s investigation begins where the “official” investigation ends. During informal fact investigation, you must know how to engage your client so he shares the facts and stories critical to his case, then use them not just to develop but to implement a winning case theory. How do you do that? It all starts with your first meeting with your clientand what you say and how you do it. Find out how your word choice and body language lay the groundwork for connecting with your client, and how to establish the openness and trust that yield what you need to build a compelling case and be a persuasive advocate. From that client information, the authors take you through the steps necessary to build and implement effective alternative case theories that will inform your fact investigation process and lay the foundation for efficient use of formal discovery devices. Zwier and Bocchino model these practice skills through four familiar NITA case files: Quinlan v. Kane Electronics (business/contract case), Brown v. Byrd (auto accident and personal injury case), State v. Lawrence (criminal robbery case), and United States ex rel. Rodriguez v. Hughes (False Claims Act case). When you see these techniques modeled as case studies, you understand how to integrate them into your overall case planning and learn how to confront the thorny ethics of day-to-day lawyering. The Second Edition is fully revised, with special emphasis on the impact of the proposed Federal Rules Civil Procedure changes, and features an important new chapter on e-discovery. Rare is now the case that doesn’t involve some form of electronic evidence, and every litigator must know the ever-expanding issues surrounding it. Find out how e-discovery strategies differ from plaintiff to defendant and how to manage your client’s competing rights to both speech and privacy in our highly discoverable online world. From explaining how to use your opposing party’s social media indiscretions against it to helping you make sense of new federal rules that limit the use of electronic evidence, Zwier and Bocchino tell you everything you must know about the impact of e-discovery on the modern litigation practice.