(1) In determining testimony, documents, and tangible objects, the judge or jury will rely on the Federal Rules of Evidence and/or applicable state rules of evidence. There are eleven specific functions, qualifications, and categories of evidence that make up the Federal Rules of Evidence. These eleven sections cover the following: 1. General provisions
2. Judicial notice 3. Presumptions in civil actions and proceedings 4. Relevancy and its limits 5. Privileges 6. Witnesses 7. Opinions and expert testimony 8. Hearsay 9. Authentication and identifications 10. Contents of writings, recordings, and photographs 11. Miscellaneous rules. Congress enacted the Federal Rules of Evidence (FRE) in 1975 for the purpose of promoting truth and fairness, in practical terms. They apply to civil and criminal judicial proceedings in the federal court system, but many states have adopted similar rules which help promote uniformity in the laws and procedures nationwide.
As stated by Thayer J., (1889)“Evidence is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact.” Admissible evidence is relevant. Testimony that is direct personal knowledge or observation and that if true proves a fact without inference or presumption.
Documentary evidence (e.g., a written contract, a deed) must be authenticated before the evidence is admissible unless, there is no question on the authenticity or the originals are lost, destroyed or made unattainable. Secondary evidence should be notarized to offer authenticity of the original document if needed. Tangible evidence is physical evidence that is either real (e.g. a murder weapon) or demonstrative (e.g. showing the type of motion used when striking a victim), or illustrative (e.g. models or charts).
Paralegals should obtain evidence by categorizing it according to Rules 901 and 902 and focus attention on evidence that requires additional investigation and support. They should begin the examination by looking at three types of evidence: (1) the client’s statement (2) witness interviews, and (3) the factual components of the existing evidence. By breaking it down to potential evidence, circumstantial evidence, and inductive reasoning the paralegal will lay the foundation to their investigation. The attorney has the authority to admit evidence. Opposing counsel may object and explain to the court why they believe it should not be admitted as evidence.
The judge will make the decision and the process continues. 2.) The purpose of gathering information from a client or witness is to gain factual information that may be used later for the client’s case. It is also important to gather their knowledge and insight into a subject or topic. This will able the paralegal to prepare for their case, and build the relationship. Interaction with the client or witness, will gain insight to their personal feelings and attitudes which is beneficial.
There are many purposes for interviewing your client or potential witnesses. Documents and tangible items may be referenced to the Federal Rules of Evidence and protected by the work doctrine. With potential evidence the paralegal can develop a building process that may expand the investigation and prove the cause of action or defense. Evidence gathered from the interviews may also be used to narrow down the investigation.
To expedite the process of connecting inferences and evidence, the paralegal may use an analysis chart. Using an evidence chart in the order of chronology, client’s existing affirmative evidence, adversary’s existing affirmative evidence, client’s potential affirmative evidence and the client’s potential rebuttal evidence eliminates repetitive work. 3.1)
I am aware that the CEO of the nearby bank has been in a bad car accident in which he has suffered damage to his back. Prior to our meeting I would confirm our appointment as well as to ask him if he would prefer to do the interview at another location that might be more comfortable for his circumstance. If not, taking this into consideration, I will be prepared with the questions that I will need to gather his information so that he will not have to sit or stand for a long period of time at my office. I can do this by creating a client profile.
I would have researched his injuries and the surgeries that he had for his back. Prior to our meeting I would have the information on the damage of his vehicle, and the accident report. I will also take into consideration that my client might be on pain medication. When he arrives I will offer him a comfortable chair or couch to be able to relax in. I will have that available. I believe being prepared for this type of client in advance would help expedite his interview.
It would also show empathy to his condition. 3.2) Prior to our meeting I would have created a client profile. I would call my client in advance and ask him to bring all his documents that relate to the motorcycle crash and any information that he could supply verifying his time off work. I will need to know his average monthly income. I would need to know if he has employees working for him, and if so, time cards, prior to and after the accident.
Prior to his arrival I would have pulled his driving and criminal record. My client is in a motorcycle club and any information that might be damaging I will need to know so that I may question him on those issues. I will verify the information on the accident report, as to his speed, conditions. Questions I will prepare will be to the facts of the accident, could he have avoided the accident, and what he did to avoid the accident. Having a broken leg, I will make sure he is comfortable with his seating arrangement. Evaluating and identifying his characteristics that might negatively affect his creditability. 4.1) I will be meeting with an elderly witness who was right behind the motorcyclist when the accident happened.
Because of her age I will probably want to consider using encouraging probes to move the interviewee forward and to keep her on track. I will ask one question at a time. I will need to know her medical history, as well as if she wore glasses and her eye sight. Is it a requirement for her driver’s license to wear glasses, and if so was she wearing them? I would like to know where she was located (the distance between) the motorcycle and herself when the accident occurred.
Was she distracted at any point? How fast was she going when the accident occurred, and did the motorcycle driver and the car she was driving maintain the same interval of speed while driving behind him? I would like to know if she thought the motorcycle driver had time to respond before the accident (did the motorcycle driver have time to stop), and if she noticed that he tried to prevent the accident.
I will ask some of the same questions on the accident as I had with the client. I want to make sure that if there are discrepancies that I will know the questions to prepare for. I will be interviewing two boys ages 11 and 12 that were riding bicycles in the parking lot of the grocery store when the accident happened.
They gave their names to the officer taking the report of the accident. They stated that they saw the woman hit the motorcyclist. I may want to use secondary questions with voice inflection so that undue influence is not placed on the wrong part of the question because of their ages. I would want to know why they were in the parking lot the day of the accident and what they were doing. I want to know where they were located in the parking lot at the time of the accident.
I want to know how they feel about seeing the accident, as younger children they might be traumatized or excited that they were able to witness the accident. Sometimes young children remember details better when they can share their story together, what one forgets the other remembers. I will ask what they saw and describe to me in their best ability each stage of events, by direct questioning. At this age they rely directly to authority.
I would probably use reflective probes, thus allowing me to understand what they are saying and not what they are feeling. If the children were of the ages 15 and 16, I feel that they will either have begun drivers education, or perhaps have their learners permit or driver’s license. At this age they would have a better understanding and the ability to offer a technical viewpoint to the accident. Their maturity level would be greater to handle an individual interview as well and then bring them together as a group interview. I would be able to get more factual statements from this age than the younger children.
Because of their age and their knowledge on learning to drive, I believe they will have the ability to offer creditable facts. 4.2) I will be interviewing a bus driver and two of her passengers that witnessed a semi-truck make an illegal left turn, hitting a Mercedes Benz. The police report shows discrepancies with all three of my witnesses. I would want to conduct this interview individually. I would start with the driver of the bus. I need to know where she was located at the time she witnessed the accident. Was there anything that might have distracted her while she was driving? Were her passengers blocking her view, or perhaps something was going on in the bus to draw her attention to it. Was this her normal route, and what time of the day and the conditions she observed? I would let her explain exactly what she saw as to form a base line to ask the passengers that were in her bus.
I would then interview each of the handicap passengers from the bus individually. I would need to know what type of handicap they have, (e.g. mental or physical), their ages. This will help in determining my next questions. Where were they located in the bus? Were they seated forward, or perhaps distracted by the other passengers. When did they notice the accident, how were they able to witness the accident?
Why were they looking out the window at that time, did something draw their attention to make them look out the window. How far back were they seated from the driver? Did they notice what the bus driver was doing at the time of the accident? Who noticed the accident first and did they say anything for others to look? I want to establish what the passengers were focused on in the bus, their disabilities and understanding of what they saw.
Because of the discrepancy to the bus driver, I will ask the same questions that I had asked the bus driver to see what their responses were and apply their credibility against the driver. I may also want to interview the driver one more time with relevant information obtained from the two handicap passengers.
When interviewing clients as well as witnesses as a paralegal I will find many different personalities as well as attitudes that might be a challenge. Trying to overcome these challenges will take skill on knowing or feeling the witness out and structuring the questions to achieve the best results. Not always will our clients be honest and truthful, so interviewing witnesses on statements made by our client will allow the paralegal the ability to go back and question the decertifies as well as try to head off any harmful information that will be used against my client. I believe it is imperative to have as much information in advance to be able to go over detail and to form the questions based on evidence.
As a paralegal I will want all my interviewees comfortable so that they will want to trust me with what they will tell me. It is always feeling out the interviewee, applying the knowledge gained in advance and then applying to form the questions that will direct the best answers. Our learned techniques will have the advantage over our interviewee as long as we take in consideration the witness’s body language, and motive.
Garner, B.A. (1999). Evidence. (1999). Black's law dictionary. St Paul, MN: West. Thayer, J.B. (1889). Presumptions and the law of evidence. 3 Harv. L Rev.
Student located four of the following sources: cases relevant to the scenario, cases that cited one of the identified cases (Shepardized), federal or state statute relevant to the scenario, rule of court relevant to the scenario, a state or federal government agency website with information relevant to the scenario 4 50% 42.5 Student identified four key words to use in a Lexis search related to the scenario. 4 5% 4.25
Student provided at least four accurate explanations as to why the law review articles, government agency websites, cases, statutes or regulations were relevant to the fact pattern. 5 25% 25 For the most part, the project adheres to the formatting guidelines as outlined in the instructions (e.g. spacing, margins, font size, etc 4 5.0% 4.25 Ideas from sources are clearly distinguishable from those of the author by the frequent use of in-text citations and (when appropriate) quotation marks.
4 2.5% 2.125 Quantity and type of sources adhere to the requirements of the assignment. Minor grammatical, punctuation, and spelling errors. 4 2.5% 2.125 Organization and structure of the paper are clear and easy to follow. Easy to follow: 5 5.0% 5 Language functional, appropriate, and acceptable. Written for the appropriate audience. 5 5.0% OVERALL GRADE REFLECTED in grading box Mode
l Final Project Research Plan 1.) List two law review articles that you have located that are relevant to any of the legal issues in the Bibe case. Article #1: The Default legal person. By: Susanna L. Blumenthal Article #2: Rolling The Dice: Should intoxicated Gamblers Recover their Losses? By: Jeffrey C. Hallam
• state step-by-step how you located the law reviews 1. Accessed the Kaplan Library. 2. Underneath online resources, clicked electronic articles. 3. Underneath databases clicked Lexis Nexis. 4. Under search tab clicked the easy search tab 5. Under jurisdiction, I entered in Nevada, for the practice area I selected contracts. 6. Under Source Categories, I unchecked everything excluding law reviews & journals. 7. I than searched through all the available material until I found what I was searching for.
The relevance of each law review article to the legal issue: This article was related to the Bibe’s legal issue because it talked about intoxication, and making contracts while being in a state of unsound mind. The article reflects on the sale of said deed, while the Bibe case reflects a product of sale. Jeffery’s article also dealt with contracts and intoxication that is to how it relates to the Bibe memo.
2.) List at least 5 key words that you would use to conduct a Lexis case search in order to locate cases relevant to the Bibe scenario. • Intoxication! • Unsound Mind • Binding contracts • Duress/5 • Undue influence 3.) List five cases that are relevant to your research of Bibe case issues. 1.) Musselman v. Cravens 2.) Allen v. Berryhill 3.) Hayden v. Latch 4.) Johnson v. Sands 5.) Dunphy v. Dunphy Case Brief for Allen v. Berryhill
Facts: Plaintiff, Isaac L. Allen, is a person of unsound mind, and he has been that way for more than a year. On June 26, 1866, the plaintiff entered into a contract with the defendant Charles H. Berryhill and one H. D. Downey (deceased), by which Allen agreed to convey to said Berryhill and Downey, who purchased the same, certain lands and property in Montana Territory, on payment of two certain promissory notes, amounting to forty-five hundred dollars, executed by said Berryhill and Downey to said Allen, payable in one year with two per cent interest. Defendant Berryhill appeals. Issues:
Was the contract valid before it had been adopted by the seller's guardian? Whether not Mr. Berryhill and H.D. Downey took sole advantage of Mr. Allen because they knew he was of unsound mind Rules: "If the mind be incapable of assenting, the law pronounces the contract void. Drunkenness of itself merely, unless fraud is practiced, will not avoid a contract; but if the party be in such a state of intoxication that he is for the time deprived of reason, the contract is void."
“Generally, when there is weakness of mind in a person conveying land, arising either from age, sickness, intoxication, or any other cause, although not amounting to absolute disqualification, and an inadequate consideration, imposition or undue influence will be presumed, and the burden is upon the grantee to show their absence.” Analysis/Reasoning:
The court found that the contract was valid because it had been adopted by the seller's guardian. The court further held that when a person of unsound mind made a contract which was beneficial to him, the law supplied or presumed the existence of the requisite capacity, or, for his protection, stopped the other party from objecting to the agreement. Conclusion/Holding:
Many felt that the judgment should be reversed, but the majority think otherwise, and order the judgment Affirmed The remaining four cases and their relevance to the Bibe’s memo: Musselman v. Cravens was related to the bibe memo because the defendant executed the same while he was of unsound mind, so did Mr. Bibe. Hayden v. Latch was related to the bibe memo because Latch, alleged that his ward was of unsound mind and incapable of transacting business at the time said deed was signed. Johnson v.
Sands was related to the bibe memo because a marriage was entered into when one of the parties was mentally incapable of what they were doing, the marriage was void. Dunphy v. Dunphy was related to the bibe memo because the same from above Dunphy had been drinking, and was unaware that he had entered into a marriage contract . 4.) “Sheparding the Dunphy v. Dunphy case.” There were 44 citing decisions for this case. 5.) Texas statues for contact laws are as follows: Duress is the use of force or pressure by one party to make the other party agree to the contract.
The force does not have to be physical--it may be mental pressure. The use of duress makes the contract voidable by the party under duress. *This is related to the bibe memo because Mr. Bibe was forced and or pressed into the contract that he signed with Mr. Owens, he never had time to overlook the contract, and think about what he really wanted to do. 6.) Rules for Texas about contract laws:
1.) Each party must have acceptance in strict compliance with terms of the offer. 2.) Each part must have respect to fully and clearly understand the terms and conditions of the contract. 3.) Each party must communicate with one another that they have understood, and accepted the terms and conditions. 4.) An offer 5.) Consideration 7.) State or federal government agency: I chose the (DOJ)
Defense of Justice agency because like all federal agencies, the Department of Justice (DOJ) generally is required under the Freedom of Information Act (FOIA) to disclose records requested in writing by any person. The law has provided a federal statue called statue of frauds, and the DOJ, FOIA, and the statue of frauds all work together in a way, and in the Bibe memo this contract was wrong.
Citations: Weblocater. (2010), Texas Contract Law. Retrieved from http://www.weblocator.com/attorney/tx/law/b02.html Chaper 923. (2010). Statue of Frauds. Retrieved from http://www.cga.ct.gov/2005/pub/Chap923.htm#Sec52-551.htm U.S. government's official web portal. (2010, Oct 21). U.S. Government Departments and Agencies Retrieved from http://www.usa.gov/Agencies/Federal/All_Agencies/index.shtml