Investigation and Evaluation

Theory of the Facts: Turning a Story into Testable Propositions

Investigation and Evaluation is represented by NCBE Tasks 5-8: deciding what facts need investigation, selecting information sources, gathering and preserving information, and evaluating its reliability and significance. The listed sub-area is Deciding what facts to investigate. Skills items supply the governing law; they measure what you do with the supplied law and factual materials. Any task may assess skills from any group, so the grouping is not a barrier around the task.

The item may give you a client story, documents, conflicting accounts, a deadline, and a supplied statute, rule, or case excerpt. A good response does not repeat the story or launch an unfocused search. It produces a prioritized factual plan: which proposition matters, what is unknown, where the answer is most likely to exist, what must be preserved, and when the record is reliable enough for the next decision.

Begin with the working theory, stated without legal conclusions. For example: “The dangerous condition existed before the incident, someone connected with the property knew or should have known about it, and the condition caused the reported event.” Break that theory into propositions that can be confirmed, disproved, or qualified. “The owner was negligent” is a conclusion. “A maintenance employee saw the loose railing three days earlier” is investigable.

For every proposition, mark the current status: established, disputed, unsupported, or contradicted. Then identify the decision the proposition affects. A fact worth chasing is one whose answer could change what you do next, not merely one that makes the narrative more complete.

Task 5 asks you to identify those consequential unknowns. Task 6 asks you to match each unknown to a source. Task 7 asks you to carry out the inquiry in a sensible order while protecting information. Task 8 asks you to test whether the result deserves reliance. Your written product should make all four operations visible.

Unknowns Worth Chasing: Rank the Gaps That Can Change the Decision

Create a fact-gap inventory before choosing an interview or sending a request. Each entry should state:

• Unknown: the precise factual question, not “learn more about the accident.”

• Decision impact: what next decision changes if the answer is yes, no, or uncertain.

• Urgency: whether evidence may disappear, memories may shift, or a deadline makes delay costly.

• Proof path: the likely source and whether an independent source could corroborate it.

• Cost and access: the time, expense, permission, or technical effort required.

Rank first the gaps with high decision impact and high urgency. Next rank gaps that strongly affect proof but are less fragile. Defer low-impact background details unless they become relevant through new information. A gap with an easy answer is not automatically important; a difficult answer is not automatically worth pursuing.

Distinguish a missing fact from a missing document and from a disagreement about a fact. “No maintenance log has been found” calls for a records search. “The manager says the inspection occurred Monday, while the employee says Wednesday” calls for comparison, chronology, and corroboration. “The witness remembers a warning” calls for a focused interview and a search for the warning’s physical or digital trace.

On the clock, use this sequence:

1. Read the call of the question and supplied authority before collecting details.

2. State the working factual theory in one sentence.

3. List the propositions that must be confirmed, disproved, or qualified.

4. Mark each proposition known, disputed, unsupported, or contradicted.

5. Rank each gap by decision impact, urgency, proof value, cost, and corroboration potential.

6. Choose the source most likely to answer the highest-ranked gap.

7. Preserve fragile evidence before inquiry could alter or destroy it.

8. Compare the resulting information with independent sources and apply the stop rule.

This procedure prevents the common mistake of investigating the most vivid fact instead of the most consequential one.

Source and Interview Design: Ask the Question Where the Answer Lives

Select the source by the nature of the gap. Use an interview for memory, intent, sequence, notice, and what a person personally observed. Use documents for dates, repeated conduct, instructions, transactions, and contemporaneous descriptions. Use physical inspection for condition, location, dimensions, visibility, and whether a claimed event is physically possible. Use digital sources for timestamps, edits, access, communications, location data, and system activity. Use a third party when the principal account is interested, incomplete, or contradicted.

An effective interview moves from an uninterrupted chronological account to precise testing. Ask what the witness personally saw, heard, did, or received. Fix the time, place, participants, exact words, and basis of memory. Separate “I saw” from “someone told me.” Ask what document, message, photograph, or other person could confirm the answer. Do not supply the desired answer in the question. Return to inconsistencies with the earlier account and ask the witness to explain them.

Sequence requests so that the first request preserves and identifies the most important source. Collect original or native materials before relying on summaries. Obtain the contemporaneous incident report, then related logs and messages, then later-created explanations. A document request should identify the subject, time range, custodian, format, and related versions, but the investigative judgment comes first: know which proposition the request is meant to answer.

The sequence below displays the critical early forks.

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Maya Ortiz left a community theater after a volunteer shift and used the side stairs because the lobby was being cleaned. As she grasped the metal handrail, it pulled away from the wall and she fell onto the landing. The theater manager, Len Price, helped her up. When Maya said the rail had moved, Len replied, “We’ve had to tighten that rail twice this spring.” He completed an incident form, and Maya signed it before leaving. The next morning she photographed the bent bracket. Her lawyer has the photograph, the form, and a medical bill. The theater says its maintenance logs cannot be found. A camera points toward the side-stair entrance, but the theater’s policy overwrites recordings after fourteen days. Maya remembers seeing a yellow warning tag near the stairs, although she is unsure whether it was there before her fall. The theater’s insurer asks whether the theater had prior notice of the condition.

For a premises-injury claim, an owner is liable for a dangerous condition on property only if the owner created it, knew of it, or should have discovered it through reasonable inspection. A condition is discoverable only if it existed long enough that a reasonable inspection would have found it.

The same materials in an integrated question set or performance task call for a short investigation plan:

The immediate objective is to determine when the railing became dangerous and whether the theater had actual or constructive notice. I would first preserve the camera recording, maintenance logs, work orders, inspection schedules, and incident-report file, identifying the relevant date range and custodians. I would then interview Len about the two prior tightening events, his source of knowledge, the warning tag, and the timing of any inspection. I would compare his account with the incident form, work records, camera timestamps, and statements from a neutral employee or visitor. Maya’s photograph should be preserved in its original form with its creation data, while the physical bracket should be photographed and inspected without altering it. If those sources cannot establish timing, I would record that uncertainty rather than infer notice from the fall alone.

This is good because it ties every step to a factual gap and protects the fragile evidence first. It also distinguishes personal knowledge, documentary corroboration, and unresolved uncertainty.

Sequence, Preservation, Reliability: Protect the Record Before Trusting It

Preservation is part of investigation, not an afterthought. Before interviewing a person about a recording, message, object, or log, identify whether the inquiry could prompt deletion, alteration, replacement, or coordinated recollection. Preserve the item or request that it be preserved, record the request and response, and note any automatic deletion period.

Use this checklist:

• Give each item a unique description, including source, date, location, and format.

• Capture the original or a faithful read-only copy before editing, annotating, converting, or extracting.

• Record who collected it, when, where, and by what method.

• Store it securely and limit access to identified custodians.

• Log every transfer, copy, conversion, or alteration.

• Keep the reason for any alteration and retain the original when possible.

Reliability is not the same as confidence. A sincere witness may be mistaken; a precise record may reflect an inaccurate entry. Score each important source across four questions:

When sources conflict, do not average them into a vague middle position. Identify the exact point of conflict, compare each source’s opportunity to know, test the timing, and look for a record created before the dispute. Record what remains unresolved and how that uncertainty affects the next decision.

The Stop Rule: Know When the Record Can Carry the Decision

Stop investigating a particular gap when three conditions are met: the answer is supported by a sufficiently reliable source or by consistent independent sources, contrary information has been tested, and additional inquiry is unlikely to change the next decision enough to justify its cost or delay. This is a working sufficiency rule, not a guarantee of certainty.

The stop decision is proposition-specific. You may have enough reliable information to decide whether to preserve a claim document but not enough to decide whether the condition existed for three days. You may stop pursuing a low-impact detail while continuing to investigate a fragile, high-impact recording.

If the record is insufficient, state why: the witness lacks personal knowledge, the document is incomplete, the sources depend on one another, or preservation failed. Do not treat silence as proof that an event did not happen. Label the proposition unresolved, identify the consequence of being wrong, and carry that limitation into the next factual decision.

Common errors include:

• Writing “investigate the accident” instead of naming the precise factual proposition.

• Chasing medical or background details before resolving a time-sensitive notice fact.

• Interviewing a witness before preserving the recording or document that could test memory.

• Treating a confident interested witness as corroborated.

• Failing to record who collected a digital file and whether it was altered.

• Treating an absent record as proof that the event never occurred.

• Continuing low-value searches after the high-impact propositions are sufficiently supported.

Practise with a supplied packet by setting a short time limit. Produce the gap inventory, source sequence, preservation note, reliability scorecard, and stop decision before writing prose. After each attempt, record which gap changed priority, why each source was selected or rejected, what conflict remained, and what fact would have justified one more investigative step.

High-Yield Points - ⚡ Biggest Takeaways

Rank unknowns by decision impact and urgency before choosing a source. Preserve fragile evidence before interviews or ordinary collection can change it. Match interviews, documents, physical evidence, digital records, and third parties to the gap. Stop when reliable support and tested uncertainty are sufficient for the next decision.