WRITTEN ASSIGNMENT II: COMMENTS FROM PRIOR YEARS
(1) Overview
To help grade this assignment, I will prepare separate grading sheets for each section, samples of which are included at the end ofthis memo. This memo explains the categories used in the grading sheets. Please read through the comments and explanations carefully; you are responsible for any legal discussions in this memo. Because this memo refers to prior versions of the problem, some of the dates below will not be the same as in your version, but I think the context will make clear what the parallels are.
(2) Factual Summaries: Comments
a. Understanding of Assigned Task: The stated purpose of the factual summary was to provide a partner familiar with adverse possession law with a description of the relevant facts so s/he could evaluate the strength of the case and make suggestions as to how to proceed. The first section of the grading sheet addresses tasks that you should have accomplished in order to meet this purpose.
i) Presents Facts Neutrally: Remember that you are not trying to persuade anyone with this type of fact summary. Do not slant the facts in your favor. The partner cannot assess the case unless s/he knows exactly what evidence exists. Similarly, avoid characterizing the information as you report it, unless you are quoting from one of your sources. Words like “even”, “easily”, “in fact” and “furthermore” all suggest that you are making an argument rather than reporting.
ii) Indicate Sources of Information: To allow the reader to assess the strength of the information in your account, you must indicate the sources of your information. You can do this in each paragraph, or with a general statement at the beginning followed by specific exceptions: “All information unless otherwise indicated, comes from two interviews Dennis O’Neal had with Boggs and Martinez.” Then in the body of the text: “Boggs arrived on the property in July, 1994. In his Answer, Boddicker claims that Boggs arrived no earlier than 1996.”
iii) Integrate Facts into a Unified Narrative: Almost invariably when you summarize facts, you rely on material from several sources. Generally, the reader wants the whole story in the order it happened, not snippets organized by source of information. Here, you had three sources of information: two interviews and the opposing side’s legal submission. By incorporating information from all sources into a single chronological narrative, you provide the reader with a good sense of what happened, while highlighting factual disputes as they occur. You should take special care to include allegations from the other side that contradict what your client has told you. These allegations probably will be the focus of the dispute.
iv) Accurately Conveys Information: Be precise. Boggs’s lawyers should explain that Boggs’s vacations generally lasted from July 1-September 1, rather than just stating he took vacations every summer. Boddicker’s lawyers need to make clear that while Mrs. Gordon’s and Boddicker’s versions of the confrontation in the street generally agree, they remember Boggs saying different things. If you represent Boddicker, make sure you keep what happened on #47 separate from what happened on #49 and Mr. Gordon’s statements separate from Mrs. Gordon’s. If you represent Boggs, differentiate what Boggs did, what Martinez did, and what they did together.
Similarly, read your materials carefully. Some Boddicker lawyers repeated Boddicker’s error and referred to Ms. Gray as “Green.” The interview with the Gordons and other circumstances strongly suggest that they must be the same person. Some Boggs lawyers referred to their clients as having been evicted “last month.” That was your boss’s comment when he wrote the memo last June. The eviction was four months in the past when you were writing.
iv) Includes Most Important/Relevant Facts: Self-explanatory.
v) Refrains from Legal Analysis: Only do the work you’ve been asked to do. Don’t spend the client’s money (or the firm’s) by doing tasks nobody wants done yet. Here, you were only asked to lay out the facts. It is very early in the case to really do much legal analysis; you don’t know all the facts yet.
b. Inclusion of Helpful Elements: All of these make the reader’s job easier and make the case easier to understand.
i) Introductions of Case, Characters, and Incidents: Introduce the summary with a sentence or paragraph that reminds the reader who the parties are and what is at issue. Introduce your characters as they appear: “Mrs. Gordon, who lives across the street from No. 47, ....” Be careful not to assume that your reader knows what you are talking about. Passing references to “the eviction” or “the business” will confuse the reader if you haven’t previously described them.
ii) Procedural Posture/Other Side’s Claims: Include a description of the procedural posture of the case either at the beginning or end. It doesn’t need to be anything more than “Boggs filed a summons and complaint alleging that he adversely possessed #47 by July 2001 and that Boddicker used unnecessary force in evicting him. We filed an answer on Boddicker’s behalf, denying Boggs’s factual allegations and stating that he had not met the continuity, exclusivity, or open and notorious elements of adverse possession.” You do need to make sure you understand that your firm drafted the pleadings for your client based on the interviews you have read. As noted above, the partner needs to know the specific factual allegations the other side has made to understand what is at issue in the case.
iii) Indications of Passage of Time: Because this case turns on people doing things over a period of time, you need to make clear when activities continue. Thus, “Boggs cleared most of the property and planted beans, corn and tomatoes. He continued to grow the garden every year until he was evicted this spring.” Or, “Since the summer of 1998, Boddicker has stayed at #49 about one night a month.”
iv) Evidence/Witnesses of Important Facts: Because the purpose of the memo is to help a partner make suggestions about the way the lawsuit will be conducted, you should provide information about the existence of evidence that supports your clients’ claims. Thus, you should note the receipts that Boggs claims may be left in the cottage and the statement the realtor made to Boddicker that nobody had used #47 in the two weeks the realtor had shown it. In addition, you should make reference to the existence of witnesses and any information you have about their credibility or reliability. The success of your client’s case will depend on what you can prove reliably.
c. Presentation: These categories should be self-explanatory. A point on organization: organizing by elements can get you into trouble. It is possible to do it well, but the most important thing here is that the reader understand what happened and when. Listing facts by element can interfere with that sense of how the story unfolded.
(3) List of Issues: Comments
a. Hits Important Issues: Both sides need to get a complete sense of the events on #47 over a ten-year period, and so need the same information from the witness. In particular, you should see if she can confirm or deny any point made by other witnesses or by the opposition in their papers.
The topics listed are my sense of the most important major categories you’d want to cover. You should assume that the witness might have some information about all of them. For all any of you know, she may have had an affair with Finley or may have been sneaking onto #49 herself. Most of the categories are pretty obvious. Categories that often were omitted or slighted:
i) General Info re Witness: Find out the witness’s background, how well she knows about the neighborhood, her relationship to the parties, her view of their credibility, etc. This type of information can’t hurt, and may strengthen your hand by helping you anticipate reactions by witnesses and actions by the other side. You want to know as much as you can, especially if you have to decide whether to try the case.
ii) Prior Owners/ Info on Other Witnesses: Try to determine what other sources of information might be available. Who else knows about the issues in the case? Who has opinions about the case, etc.
b. Confirms Client Story: When interviewing a witness, remember to try to confirm your client’s story as well as to poke holes in the opposition’s. Your client’s story might be inaccurate for several reasons: the client could be mistaken, could have forgotten things, could be leaving out useful information, or could simply be lying. Even if your client’s story is accurate, a jury might not find your client credible. Confirmation from a believable third party is always helpful. Many of you, particularly on Boddicker’s side, never would have found out about information harmful to your case because you apparently trusted your client’s version of events.
c. Avoids Legal Terms: Try to use words the witness will understand. Many of you listed questions about “improvements” or “open and notorious.” You may confuse your witness by using legal terminology; to make sure you don’t, write things down the way you would explain them to a lay person. Ask about “any repairs or construction” instead of “improvements.” Similarly, asking about “cultivation” may not get the answer you want; it may make the witness think of big commercial farms. Instead, whether Boggs and Martinez were growing anything on the property.
d. Level of Specificity: The purposes of drawing up a list of issues are to provide your supervising attorney with some idea of what you intend to do so s/he can make suggestions, and to provide you with an outline for your own use during the interview. The most difficult problem for you to resolve is trying to determine the appropriate level of generality or specificity in your questions or issues.
General questions provide witnesses with an opportunity to respond without being fettered by the question. The response to “What happened on the night of April 17?” may be “Damned if I know!” The response to “Have you ever been at the Montagues’ house?” may be “Oh, yeah, there was that party in the middle of April.” You generally should ask questions that include dates only as follow-ups. Similarly, you should ask first about “any confrontations between Boggs and Boddicker” before referring to “the confrontation in the street in June, 2001.”
On the other hand, if your questions are too general, or you don’t follow up with specifics, you may miss information that is important. You need to be ready to go on if your witness simply responds, “yes” to a general question like “Have you ever seen Boddicker do anything on #47?.” Moreover, if you don’t list specific things you want to check on (e.g., points made by other witnesses), you may forget to raise them.
One good way to deal with this conflict is to list general issues/questions, followed by a list of specific topics on which you hope to elicit information. I refer to this as “funneling” in my comments. Here is an example:
5. Knowledge of Boggs’s use of property
Residence? Starting when?
Grow crops? What? How much? Starting when? Every year?
Building/repairs? What? when?
Business? Starting When?
Other?
Note several things about this example. First, I begin the section with a topic heading. The heading is helpful here both for you in the interview and for your partner reviewing the list. It enables both of you to quickly determine whether you’ve hit all the major points. During the interview, you can use these headings as transitions: “Now, Ms. Gray, let’s turn to what Mr. Boggs was doing on the property.”
Second, I am careful to ask “when?” all the time. An adverse possession case turns on when people did things and whether they continued to do them. You need to nail this information down as best you can in the interview. Listing “when?” as a follow-up question will remind you to do this.
Third, I asked about other things I hadn’t listed. Perhaps the most important questions you ask in interviews begin, “Is there anything else ...?” The witness may know things you hadn’t thought of or that your client has forgotten or never knew about. Try to end each section of the interview with an anything else question. One that is particularly important is “Is there anyone else who you think may have information about the matters we’ve been discussing?”
e. Sense of Legal Rules: Several of you made mistakes regarding what information goes with what legal element. You might review the adverse possession materials to remind yourselves of the focus of each element. The especially problematic element is “open and notorious.” Many of you wanted to make a big deal about whether one could see Boggs’s activities from the street. This is legally irrelevant. The question is what you can see standing on the surface of the property. Similarly, the element “exclusive” focuses on what Boddicker (or others) did on #47, not on what Boggs and Martinez did. The element “actual” encompasses residence and business operations, not just cultivation, improvements, enclosure.
f. General Points About Interviewing: Remember that you are doing an informal interview to gather information. There is no record but whatever notes you take. Hostile questions appropriate for cross-examination (“Isn’t it true that …” or “Were you aware that …” will annoy your witness and limit the information you receive.
You are not bound by the rules of evidence in an interview. In particular, you can ask about things the witness has heard from others. Hearsay evidence is useful in the investigation of a case. Although generally your witness can’t testify in court about things other people told her, you can use hearsay information to point you to witnesses and documentary evidence that you can use in court. Thus, you can ask if she’s heard anything about, for example, why Boggs and Martinez left the property.