This month’s feature articles focus on the benefits of an investigator in discovery and the “dance” of trial preparation. We also reran an e-discovery survival guide that can help you prepare for possible e-discovery challenges.
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Why Do You Need an Investigator?
By Gary Fradis, Stein Investigations
When an attorney is presented with a new case, one of the first decisions he has to make is whether to litigate the matter or dispose of it by settlement. Sometimes, the lack of available information can make this a difficult decision. Many a case has been won based largely on the evidence procured through the use of an investigator. Thus, when deciding the best course of action on a new case, it is beneficial for the attorney to be fully conversant with the tools at his disposal, as regards what a private investigator can do to help give the full picture for the case. Here are some of the important functions a private investigator can perform:
Interviews and Statements
It is important to obtain interviews and, when appropriate, take statements from witnesses. The earlier this can take place the more beneficial it will be. Everybody loses facts in their mind as time goes by. Getting to a witness early can preserve vital information. People move, forget, and even die in the time it takes for a case to come to trial. If the facts can be memorialized before any of these unfortunate events occur, all the better.
An investigator can often “get into” the case more thoroughly than a claims adjuster who has hundreds of claims to worry about. In-depth questions can be asked that can give an attorney a better idea as to both the credibility of the witness and the complexity of the facts.
Obtaining this information, either positive or negative, can be of value to an attorney. If the information is positive to your case, then it will be ammunition to pursue it through trial. If the information is negative to your case, it will be an incentive to settle. If you settle early, you can generally settle more economically.
Choreography is the art of making dances. The choreographer arranges movement, lights, and sound in a deliberate manner to convey a concept, set a mood, or tell a story.
Trial preparation is like a choreography in that it is a deliberate arrangement of elements to convey a concept and tell a story from a particular point of view. Both choreography and trial practice rely on the skill of a performer, either a dancer or litigator, to effectively communicate with an audience or a hearing officer.
Spontaneity and Simplicity
“(W)hen the dancer is at the peak of his power, he has two lovely, fragile, perishable things. One is spontaneity . . . the other is simplicity . . . “
Martha Graham, A Dancer’s World, a film produced by Nathan Kroll
Successful trial practice requires those same two attributes. The litigator’s need for spontaneity is obvious to anyone who has participated in a hearing or trial. She must object to inadmissible evidence, change prepared cross and redirect examination based upon direct testimony given, and constantly revise plans based on what is happening in the proceeding. The litigator must live in the moment.
The litigator’s need for simplicity is perhaps less obvious but equally important. She must keep the story simple, the facts coherent, and the issues specific in order to communicate clearly.
These are true stories of criminals either caught in the act or not using their common sense.
Georgia: Investigating a purse snatching, detectives picked up a man who fit the thief’s description and drove him back to the scene. He was told to exit the car and face the victim for an I.D. The suspect carefully eyed the victim and blurted, “Yeah, that’s the woman I robbed.”
(Location Unknown): A woman was reporting her car was stolen, and mentioned that there was a car phone in it. The policeman taking the report called the phone and told the guy that answered that he had read the ad in the newspaper and wanted to buy the car. They arranged to meet, and the thief was arrested.
Arizona: A company called “Guns For Hire” stages gunfights for Western movies, etc. One day, they received a call from a 47-year-old woman who wanted to have her husband killed. She got 4-1/2 years in jail.