NITA Publications

Fact Investigation

This book will change the way you approach your cases for the rest of your career.

Your investigation begins where the police investigation ends. In an exploration of informal fact investigation, you will learn how to plan for learning critical facts and how to develop and implement a winning case theory. Focus your case by narrowing the issues and employing other groundbreaking techniques discussed in this guide by authors Anthony Bocchino and Paul Zwier.

Fact Investigation includes three problems that illustrate the use of practical learning models, and integrates them into the overall case planning and ethical issues of day-to-day lawyering. The case files include: Quinlan v. Kane Electronics (business/contract case), Brown v. Byrd (auto accident and personal injury case), and State v. Lawrence (criminal robbery case).

Reviews

"Zwier and Bocchino have developed a teaching book for one of the most fundamental and critical skill sets that lawyers today are required to do - thoroughly investigate facts and develop a 'winning' theory of the case. What is perhaps most impressive about this effort is it not only can serve as an excellent guide for those lawyers just embarking on their journey through the legal profession, but is also a tremendous practical resource to lawyers with many years of experience."

-Richard A. Chesley, Jones, Day, Reavis & Pogue, Chicago, Illinois

"Finally a book has been written that devotes itself to this critical aspect of a trial lawyer's work. Zwier and Bocchino's excellent new book Fact Investigation is not only a handy reference tool but well worth a read from start to finish."

-Kenneth S. Broun, Henry Brandis Professor of Law, University of North Carolina School of Law

• >> TABLE OF CONTENTS
  Table of Contents
  
  Acknowledgements
  
  Chapter 1 Preliminary Perspectives
  
  Chapter 2 Client Interviewing
  2.1 Goals of the Initial Client Interview
  2.1.1 The Goals of the Clients and Lawyers Individually
  2.1.2 Goals of the Client as Compared with Goals of the Lawyer
  2.2 Competing Motivations
  2.2.1 Client Inhibitors
  2.2.2 Lawyer Facilitators
  2.3 An Overall Client Interview Strategy
  2.3.1 Pre-interview Planning
  2.3.2 Rapport/Icebreaking
  2.3.3 Basic Questioning Technique
  2.4 The Three-Stage Interview
  2.4.1 The Gush
  2.4.2 Problem Overview
  2.4.3 Theory Verification
  2.5 Professional Responsibility/Issues and the Initial Interview
  2.5.1 The Onset of the Attorney/Client Relationship
  2.5.2 Confidentiality of Communications and Other Information
  2.5.3 Conflicts of Interest
  2.5.4 Conflicts with Other Clients and Former Clients
  2.5.5 The Scope of Representation
  2.5.6 Fee Agreements
  2.5.7 Diligence and Communication
  2.5.8 Professionalism Concerns: What If the Client Lies?
  
  Chapter 3 Developing Case Theory for Fact Investigation
  3.1 Introduction
  3.2 Definitions
  3.2.1 Legal Theory
  3.2.2 Factual Theory
  3.2.3 Persuasive Theory
  3.3. Theory Identification Process
  3.3.1 Legal Theory
  3.3.2 Factual Theory
  3.3.2.1 Time Lines
  3.3.2.2 Relationship Charts
  3.3.2.3 Brainstorming
  3.3.2.4 Focus Groups
  
  Chapter 4 Fact Investigation Plan
  4.1 Introduction
  4.2 Fact Investigation Devices
  4.2.1 Devices Available in Both Civil and Criminal Litigation
  4.2.2 Devices Available in Civil Litigation
  4.2.3 Devices Available in Criminal Litigation
  4.3 Plan Structure and Fact Investigation Chart
  4.4 Executing the Plan
  
  Chapter 5 Witness Interviewing
  5.1 Introduction
  5.2 Lawyer Roles
  5.3 Interviewing the Friendly Witness
  5.3.1 Timing
  5.3.2 Preparation
  5.3.3 Conducting the Interview
  5.4 Interviewing the Neutral Witness
  5.4.1 Timing
  5.4.2 Preparation
  5.4.3 Conducting the Interview
  5.5. Interviewing the Hostile Witness
  5.5.1 Timing
  5.5.2 Preparation
  5.5.3 Conducting the Interview
  5.6 Inhibitors to Witness Testimony
  5.6.1 Ego Threat
  5.6.2 Job Threat
  5.6.3 Role Expectations
  5.6.4 Etiquette Barrier
  5.6.5 Trauma
  5.6.6 Perceived Irrelevancy
  5.6.7 Greater Need
  5.6.8 Time and Money
  5.6.9 Forgetting
  5.7 The Psychology of Memory
  
  Chapter 6 Counseling
  6.1. Introduction
  6.2 Three Competing and Interlocking Models
  6.2.1 The Client-Centered Approach
  6.2.1.1 Stages of the Client-Centered Approach
  6.2.1.2 Problems Using the Client-Centered Approach
  6.2.2 Surrogate or Delegation Model
  6.2.2.1 Risks in Using the Surrogate Model
  6.2.3 Friendship Model
  6.2.3.1 Some Underlying Assumptions
  6.2.3.2 Four Steps to Friendly Counseling
  6.3 Choosing the Right Model for the Client and the Situation
  
  Appendix Model Rules of Professional Conduct
  
  October 22, 2010

• >> AUTHORS
  
  
  • Anthony J. Bocchino
    
    
    • Professor Anthony Bocchino is an honors graduate of the University of Connecticut School of Law after which he was a Bradway Fellow at the Duke University School of Law. He served as a full time faculty member at both the University of Connecticut School of Law and the Duke University Law School before joining the Temple University Beasley School of Law faculty in 1979. At the Beasley School of Law for the period 1979 -1989 he was Director of Temple's Trial Advocacy and Clinical Programs. He has designed the program, written materials and taught in the law school's Integrated Trial Advocacy Program which has been twice awarded the Gumpert Award for Excellence in Teaching Trial Advocacy from the American College of Trial Lawyers, in addition to receiving the Gambrell Award for Teaching Professionalism from the American Bar Association. In 1997 he was named by Temple University as the Jack E. Feinberg Professor of Litigation.
      
      Professor Bocchino has been honored with teaching awards from Duke University School of Law where he received the Mordecai Society Award and the Beasley School of Law where he was the first recipient of the George P. Williams II Memorial Award. In addition, he has received the Oliphant Award from the National Institute for Trial Advocacy and the Richard S. Jacobson Award from the Association of Trial Lawyers of America for excellence in teaching the art and science of trial advocacy.
      
      In addition to his law school duties Professor Bocchino has served as a faculty member for the National Institute for Trial Advocacy (NITA) since 1974, served as NITA's Director for five years and served as the organization's Editor in Chief. Bocchino has written materials and designed programs for trial, deposition, fact investigation, motion practice and appellate advocacy programs for more than 30 law firms and numerous public agencies. He has also conducted needs analyses and designed litigation skill curricula for numerous law firms. His CLE materials and program designs are among the most frequently utilized by those organizations. In addition, he has and will customize materials to the specific needs of individual clients.
      
      Professor Bocchino is the author of over 60 books and articles, predominantly in the fields of Evidence, Trial Advocacy, Civil Litigation and Professional Responsibility. His trial advocacy and/or deposition practice materials are used in a majority of the law schools in America, as well as in CLE litigation skills training in the public and private sectors.
      
      Professor Bocchino has been elected as a member of the American Law Institute, and named a Fellow of the American Bar Foundation, Litigation Counsel of America and the International Society of Barristers.

  
  

  • Paul J. Zwier
    
    
    • Paul J. Zwier is a professor at Emory University School of Law, where he directs the trial advocacy and litigation skills programs and teaches torts and advanced negotiation, mediation, and international dispute resolution seminars. He has taught courses in advocacy, litigation skills, and ADR at more than 250 law firms and legal organizations in the U.S., and internationally in Africa, Canada, China, Great Britain, Guam, and Saipan. He also consults on ADR strategies as well as case theory and presentation in trial cases. Professor Zwier directs the Appellate Court Advocacy program as well as the Advocacy Teacher Training/Lawyer without Borders program. Prior to joining the faculty at Emory, he was a professor of law and director of the Center for Advocacy and Dispute Resolution at the University of Tennessee Law School and a professor of law at the University of Richmond School of Law. He has been a visiting professor of law at both William and Mary Law School and Temple University School of Law. He is the former director of Public Education for the National Institute for Trial Advocacy (NITA).