What Plaintiff Law Firms Can Learn from TV’s Perry Mason: How Incorporating Informal Investigation Techniques into your Litigation Strategy Can Maximize Your Client’s Recovery.

Perry Mason was a fictional criminal defense attorney. His side kick, Paul Drake, while also fictional, was arguably the first litigation investigator. In almost every tv episode, there was Drake locating, interviewing, and even bringing to court, the hard to find witness, or unearthing that document that everyone else overlooked; thereby, reshaping the trajectory of their case.

In this piece will look at when and how you can better utilize informal investigation approaches during litigation to maximize your results.

For many plaintiff law firms, developing evidence to successfully litigate a case comes through depositions, interrogatories, and requests for admissions. After all, often times, the defendant is in possession of information that can really help prove up your claims.

While these statutory discovery approaches can be effective, they can also be abused by opposing counsel leading to time consuming discovery battles since using these information gathering techniques requires surrendering a certain amount of control of the litigation process to the opposing counsel. 

Strategically, this approach can also tip your hand as to the strengths and weaknesses of your case. Which can further drag out the litigation, and even impact the recovery and results.

Benefits of Informal Investigation

And this is how Perry Mason and his team’s approach to litigation can be a game changer for your firm. They effectively built their cases through informal investigations rather than through the more expensive and formal process of statutory discovery. 

True. You’ll still need the formal discovery process. But by incorporating informal investigations,  and relying less upon formal discovery, you’ll be able to develop information outside of opposing counsel’s purview allowing you better control over the information developed, and when and how to use it. 

In addition, you’ll be able to reduce your litigation costs, especially if your staff can handle the bulk of the informal investigation process.

Further, informal investigation allows you to greatly expand the resources available to your team to develop usable information, and the ability to safely learn all the available information, whether helpful, or harmful, without directly tipping off opposing counsel. 

The greater the amount of information you possess, the better course you are able to set during the litigation process

For 30+ years, in Los Angeles, CA and Albuquerque, NM I helped plaintiff attorneys prepare cases for trial and settlement. And the informal investigations we conducted played a critical role in the success in their ability to maximize the results for their clients. And I’ve taught the investigative techniques I used on these cases to hundreds of attorneys, paralegals, legal assistants, and law school students.

To help your firm get the most out of the witness interviews you conduct, you can download my free PDF guide, 6 Steps to More Effective Witness Interviews that Maximize Case Results, or if you prefer you can watch my free, pre-recorded online workshop, by signing up in the sidebar. I take you through my approach to conducting successful witness interviews that I mastered while doing approximately 12,000 witness interviews.

Witness Interviews

Witness interviews conducted outside the presence of opposing counsel offer tremendous upside, with very little downside.

•  They are far less expensive than depositions, and can help you pare down the list of witnesses to depose.
•  People provide more and better quality information when they are comfortable. And being interviewed in your living room is far more comfortable than being deposed at a law firm.
•  Opposing counsel is not there to try to manipulate and undercut the information to lessen its effectiveness.
•  It’s a safe space where you can ask questions that may produce answers you don’t like.
•  They allow you to develop a strategic approach to addressing information, whether helpful or harmful.
•  Interviews also can point you in the direction of other potential sources of information.
•  You can still use declarations, or sworn statements that comply with 28 USC 1746 to get information admitted for use to survive summary judgement motions.

Since there are many benefits to conducting witness interviews instead of depositions, so when does it make the most sense to conduct witness interviews instead of depositions?

•  Conducting witness interviews before filing your complaint allows you to build out your fact pattern strengthening your complaint. These interviews can be conducted even with current employees provided they are not represented by counsel, and cannot bind the company.
•  It also makes sense during litigation to conduct witness interviews with friendly witnesses. If necessary a declaration can be obtained from them based upon the information they provide for use during litigation of summary judgment.
•  A neutral witness can also be interviewed independently of discovery since they don’t have a stake in the outcome of the litigation.
•  It’s also ok (again provided they are not represented by counsel, and cannot bind the defendant entity) to try to interview witnesses who are potentially hostile to your theory of the case. It’s better to know potentially damaging info up front. Hostile witnesses that you can ethically contact, who refuse to be interviewed can be served a subpoena for a deposition.
•  Conducting informal witness interviews with witnesses to develop impeachment, rebuttal, and honesty and veracity information, can be interviewed as well. 

Public Records

Federal, state, county, and municipal governments all maintain public record documents. Knowing what types of records there are, where to locate them, and how to use them, can help take your litigation preparation and effectiveness to the next level.

•  Prove or disprove a specific fact-pattern including for summary judgment.
•  Certified public records can be admitted at trial, depositions, or for use at settlement.
•  Can be used to impeach or challenge the honesty and veracity of a witness or party opponent.
•  Can identify individuals who can testify to prior bad acts, or a person’s reputation for honesty and veracity in the community.
•  Help you identify which parties to name as defendants.
•  Help you determine if there are sufficient assets available to decide whether to accept or reject a policy limits offer.
•  And to help you locate hard to find witnesses.

Since there are so many uses of public records, when does it make sense to use public records requests to obtain documents?

•  When documents can be certified instead of requiring a custodian of records to authenticate them.
•  When a record is in possession of a defendant government entity that is legitimately a public record, and when the state public record’s act prohibits asking a requestor for the purpose of requesting the record. (I have seen defendant government argue to judges that using public records requests is an end run around discovery, and therefore do not need to be complied with. By-in-large, most courts see a public record as a public record available to anyone regardless of who requests the information.
•  When public records can be used during informal witness interviews to help clarify issues.
•  When a certified public record can be used to prove or disprove a fact during a hearing or deposition, as well as for impeachment purposes.

Although this occurred during a criminal defense case, instead of civil case, that I worked on many years ago, a law enforcement officer alleged in an affidavit that he pulled over a driver and then conducted a search contingent to that stop, after the driver ran an onramp meter (going while it was red for his lane). A request to the transit authority produced a public record for that meter showing that the traffic stop occurred after the meter had already been turned off. Thus, directly impeaching the officer.

Successful plaintiff law firms know that using informal investigation processes can greatly boost your litigation strategy. It can also boost your client’s settlement or award. Sure, Perry Mason and Paul Drake are fictional characters, but their approach to litigation can provide very real benefits to plaintiff law firms that incorporate their approach.

If your firm is ready to get the most out of your witness interviews, and to maximize your case results, go ahead and download my free PDF below, or watch the free online workshop that I’ve put together to help you master the 6 steps to more effective witness interviews. You can access the workshop in the sidebar.