Facts worth knowing depend on the theory of the case. Efforts must be directed towards defined goals, everything else is a waste of time and money.
Investigation is the process of using both informal and formal discovery. The most productive investigations are finely tuned to coincide with the most important issues within the theory of the case.
Know as much information as you can early on rather than discovery during trial. Discovery during trial is hard on clients. As investigation deepens, chapters materialize or evaporate. Results of investigation are fed back into the preparation system once lawyer discovers new areas of inquiry.
Weaknesses that become factors beyond change that are fatal to the theory of the case require that the theory of the case to be changed. It is efficient to begin thinking in terms of cross-examination necessary to establish a particular theory before beginning investigation.
Dangers of investigating without a case theory: waste of time, money, and witnesses as well as lawyers are misled.
A lawyer must examine what parts of the testimony needs to be challenged and analyze if there are any holes or inconsistencies in the story.
A few hours spent on cross-examination before trial produces an entirely different result than identical hours spent in developing the cross-examination a few days before trial.
Depositions: ask open-ended questions about facts, events, and explanations.
- · This way the witness is offered the broadest opportunity to change or vary with previous or expected explanation,
- · Don’t repeat unfavorable version of facts as accurate – meaning don’t repeat as a leading question. It reinforces unfavorable facts as a fact beyond change.
Simplicity is a requirement for any system that will withstand the craziness of a courtroom.
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