Deciding what facts to investigate

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Near-Miss Fact States: Match the Question to the Information Gap

Task 5 at the Hinge: Find the Fact That Can Flip the Position

The governing law supplies the decision rule for evaluating a position. The central trigger is not “Is this fact interesting?” It is: Could this fact change the result under the supplied authority, and is the present record strong enough to support the position?

Run the inquiry in this order:

  1. State the position as a conditional result. Translate “we should win” into the supplied rule’s factual conditions: “The position succeeds if X occurred, Y was timely, and Z did not trigger an exception.” Do not investigate a legal conclusion such as “the customer accepted.” Identify the conduct, words, timing, or document that would establish acceptance under the supplied law.

  2. Locate the hinge fact. Ask what single fact, if changed, would move the result from favorable to unfavorable. The hinge may be a threshold fact, an exception, a timing fact, causation, identity, authenticity, or a fact bearing on the reliability of the only important witness. A fact that merely makes the story more vivid is not a first-priority investigation.

  3. Compare the hinge fact with the current record. Investigation is needed when the fact is missing, when sources conflict, or when the existing proof is vulnerable in a way that could defeat the position. If the supplied authority assigns a burden or standard, ask what evidence would satisfy it-not merely what probably happened.

  4. Classify the information gap before choosing the method. A missing fact calls for elicitation from the person or record most likely to contain it. A disputed fact calls for comparison and corroboration. A fact already supported by independent, contemporaneous evidence usually requires a stress test rather than a broad new search.

  5. Test the opposing route to defeat. A position is not evaluated by collecting only supporting facts. Ask which fact the opposing party would use to invoke an exception, attack timing, challenge credibility, or show that a required condition never occurred. Investigate that fact if it could change the decision.

The sequence can be run quickly:

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The best elicitation is the one that reaches the hinge fact with the least distortion. If the client has firsthand knowledge, begin with an uninterrupted account, then pin down exact words, dates, sequence, and witnesses. If a contemporaneous record is likely to control, obtain the original record or the record system that generated it rather than relying on a later summary. If the fact belongs to an adverse party or third party, target the precise custodian, witness, or data source. If accounts conflict, seek an independent discriminator-such as a timestamp, access log, or physical record-rather than asking the same person to repeat the same account.

This chapter is not starred: legal resources may be supplied when it is tested, and where they are not, you need only demonstrate recognition that the topic is at issue.

Several answers can sound investigative while targeting the wrong problem. The separating fact is usually the status of the decisive proposition: unknown, disputed, or already supported.

Status of decisive propositionQuestion to answerBest elicitationDecision consequence
Unknown and client may knowWhat exactly happened and when?Open account followed by precise follow-upBuild the first factual version without supplying the answer
Unknown and a record likely existsWhich record fixes the event or timing?Obtain the original record and its underlying system dataReplace approximation with objective detail
Disputed between sourcesWhich account survives independent testing?Compare accounts and seek a separate discriminatorResolve the conflict rather than count repetitions
Supported but attackableWhat weakness could make the proof fail?Test timing, independence, completeness, and incentiveKeep the fact, qualify it, or investigate a narrower weakness

Missing versus disputed. If nobody has supplied the departure time, ask who or what can establish it. If the client says 2:05 and the carrier’s log says 2:00, the issue is no longer simple elicitation; it is reconciliation. Asking the client the same question again does not resolve the conflict.

Sent versus received. An outgoing email timestamp may establish sending but not receipt. When the supplied law makes receipt decisive, investigate the receiving system, acknowledgment, or server record. The fact separating the two is not the sender’s confidence; it is evidence of delivery under the rule.

Created versus occurred. A report written after a dispute may show what someone later recorded, not when the underlying event happened. If the position turns on event timing, investigate contemporaneous data or the process that generated the timestamp.

Relevant versus outcome-determinative. A witness’s reason for acting may be relevant to credibility, but it becomes a priority only if credibility could change the result. Conversely, a small timing detail may look unimportant but be decisive when the supplied rule creates a deadline.

Open elicitation versus confirmation. Ask for a clean account before presenting a proposed answer when the person’s memory itself is being evaluated. Use a document afterward to test dates, names, and omissions. If the immediate purpose is only to locate a record, a targeted prompt is efficient; it should not imply the answer.

Corroboration versus duplication. Three people repeating the same rumor do not necessarily provide three independent proofs. The useful question is whether the sources are independent and whether each addresses the hinge fact. A new source matters when it can confirm, contradict, or explain the existing evidence.

Recurring errors:

  • Treating Lena’s email sent at 2:05 as proof that the carrier received it at 2:05 skips the decisive delivery fact.

  • Asking whether a $450 fee is fair investigates sympathy rather than the supplied rule’s timing condition.

  • Accepting a route sheet as conclusive despite evidence that it was completed after the dispute confuses later recording with contemporaneous occurrence.

  • Repeating a leading question to the same witness does not resolve a conflict between that witness and an independent system log.

  • Continuing a broad search after independent records establish the hinge fact wastes effort unless a specific weakness remains material.

One Timing Dispute: Choose the Investigation That Decides

A strong answer identifies both what must be learned and why that method is superior now. The answer is not necessarily the most extensive investigation. It is the investigation that most directly resolves the fact that controls the supplied rule, while accounting for the quality and availability of the source.

Zoe owns a neighborhood bakery. She ordered a refrigerated delivery from QuickCart for 3:00 p.m., but canceled after her customer postponed an event. Zoe says her assistant, Priya, sent a cancellation through QuickCart’s designated portal at 2:05 p.m. QuickCart’s portal shows an upload completed at 2:06 p.m. The driver, Marco, wrote on his route sheet that he “departed” at 2:00 p.m., but QuickCart’s manager says drivers usually complete route sheets after deliveries. Zoe remembers seeing the van still at the loading dock when Priya sent the cancellation. The dock camera overwrites recordings after ten days, and the invoice seeks a $450 cancellation fee. Zoe contends that the fee is not owed because notice was timely. The portal record identifies the cancellation but does not state when the carrier’s system received it. The van’s GPS data and QuickCart’s server log may still be available.>

Which investigation is the best next step to evaluate Zoe’s position?

The supplied authority is:

Practice

Under the cancellation-fee rule, written notice includes an electronic message delivered to the carrier’s designated cancellation system. Notice is effective when received by the carrier’s system, not when sent. A merchant owes no cancellation fee only if the carrier’s system received the notice before the driver departed the merchant’s premises. The party asserting that no fee is owed must prove the relevant timing by a preponderance of the evidence.

Decision-Ready Drills: Three Fact-Finding Forks

Practice

A client claims a cancellation fee is barred if the carrier received notice before the driver left. The client’s email shows it was sent at 2:05 p.m., but the receiving-system timestamp and the driver’s departure time are unknown. Which fact should be investigated first?

A client says a supplier “agreed to extend the deadline,” and the position turns on whether the supplier actually made that agreement. The client has not yet given a complete account of the conversation. What is the best initial elicitation?

An employee’s account of when a package left the warehouse is confirmed by an independent, time-stamped dock video and the carrier’s scan. No contrary source exists, but the evaluator has not investigated every possible witness. What is the proper next move?

High-Yield Points - ⚡ Biggest Takeaways

Investigate the smallest unresolved fact that could flip the result under the supplied rule. Distinguish missing facts from disputed facts; elicitation solves the first, corroboration tests the second. Sent, recorded, or remembered is not necessarily received, occurred, or proved.

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Practice Questions: Deciding what facts to investigate

  1. 1. A small manufacturer asks a lawyer to pursue a supplier for allegedly delivering defective components used in the manufacturer's products. The manufacturer says that most communications occurred through an employee messaging platform that automatically deletes messages after 60 days. Some relevant messages may disappear within a week. A former purchasing employee, who is not represented by counsel, negotiated the order and later left after disagreeing with management about whether the manufacturer's design caused the failures. The client wants a quick demand but has not authorized litigation, and the lawyer has not yet determined whether the messages support the client's account. What is the most appropriate next step?

    • A. Send a preservation request identifying relevant messages and ask the client to suspend routine deletion while counsel investigates.
    • B. File suit immediately so formal discovery can begin before determining whether the messages support the client's account.
    • C. Interview the former employee through opposing counsel because the employee communicated with the vendor during the transaction.
    • D. Advise the client to restore only favorable messages because producing irrelevant or adverse communications would increase litigation risk.
    Show answer

    Answer: A. Send a preservation request identifying relevant messages and ask the client to suspend routine deletion while counsel investigates.

    Send a preservation request identifying relevant messages and ask the client to suspend routine deletion while counsel investigates. - Messages may disappear within a week under the platform’s 60-day deletion policy, so preserving relevant communications is urgent. - Preservation protects the record while counsel determines whether the messages support the manufacturer’s account and whether to pursue a demand or litigation. File suit immediately so formal discovery can begin before determining whether the messages support the client's account. - The client has not authorized litigation, and counsel has not yet investigated whether the messages support the claim. - Imminent deletion calls for preservation now, not a premature filing to obtain discovery. Interview the former employee through opposing counsel because the employee communicated with the vendor during the transaction. - The former purchasing employee is unrepresented, so negotiating with the vendor does not itself require an interview through opposing counsel. - The employee’s disagreement about causation may warrant investigation, but it does not replace the immediate need to preserve messages. Advise the client to restore only favorable messages because producing irrelevant or adverse communications would increase litigation risk. - Preserving only favorable messages risks losing relevant evidence and would hinder an accurate assessment of the failures. - Whether a message must eventually be produced is separate from preserving relevant communications before automatic deletion.

  2. 2. Using only the supplied file and legal resources, prepare an advisory letter to the client explaining whether she should accept the publisher’s proposed resolution, counteroffer, or pursue available contract remedies. Address the strength of her legal position, the practical consequences of each option, and the additional documentation she should preserve.

    • 3. Using only the supplied client file and legal resources, draft a confidential settlement proposal email to counsel for tenant Solace Fitness on behalf of Harbor Properties. The proposal should pursue the client's objectives of prompt payment, restoration of compliant operating hours, and preservation of the tenancy. Accurately state the lease breaches and disputed issues, propose supported monetary and nonmonetary terms, include a workable cure and verification process, and preserve unresolved claims without making unsupported threats. Do not state that you have authority beyond the limits in the client instruction, and do not use outside law.

      • 4.

        • 5.

          • 6.

            • 7. A lawyer represents a software company seeking to enforce an employee noncompete agreement. The general counsel sends the lawyer a five-year-old published appellate opinion upholding similar language. The opinion interpreted a statute governing noncompete agreements. The legislature amended that statute two years later, and the amendment applies to agreements signed after its effective date. The client's agreement was signed last year. The general counsel wants advice by tomorrow and asks whether the older opinion resolves the issue. The lawyer has not yet checked the opinion's subsequent treatment or located cases interpreting the amended statute. What is the most appropriate next research step?

              • A. Confirm the opinion remains good law, then use the jurisdiction's current statute and later controlling cases to assess the amendment.
              • B. Rely on the opinion because a published appellate decision remains controlling unless the same court expressly overrules it.
              • C. Begin with law-review articles discussing noncompete policy because secondary sources provide the most current statement of binding law.
              • D. Advise the client that the clause is unenforceable because the cited statute materially changed after the opinion was issued.
              Show answer

              Answer: A. Confirm the opinion remains good law, then use the jurisdiction's current statute and later controlling cases to assess the amendment.

              Confirm the opinion remains good law, then use the jurisdiction's current statute and later controlling cases to assess the amendment. - The agreement was signed last year, so the amended statute applies; the older opinion interpreted the statute before that amendment. - Check the opinion’s subsequent treatment, then analyze the current statutory text and any controlling decisions interpreting it before advising the general counsel. Rely on the opinion because a published appellate decision remains controlling unless the same court expressly overrules it. - A legislative amendment can supersede an opinion’s statutory reasoning without the same court expressly overruling the opinion. - Because the client’s agreement postdates the amendment, the older opinion alone cannot resolve its enforceability. Begin with law-review articles discussing noncompete policy because secondary sources provide the most current statement of binding law. - Law-review articles may help identify issues or authorities, but they are not binding law. - The lawyer needs the current statute and controlling cases, not policy commentary as a substitute for them. Advise the client that the clause is unenforceable because the cited statute materially changed after the opinion was issued. - The amendment’s applicability does not establish unenforceability without examining what the amended statute requires. - With subsequent treatment and later cases still unchecked, the lawyer should explain the uncertainty rather than give a definitive conclusion.

            • 8. A lawyer represents a small contractor in settlement negotiations over a payment dispute. The client authorized the lawyer to accept any settlement offer of $60,000 or more and instructed the lawyer to reject anything less. The opposing party now offers to settle for $45,000, well below the client's authorized minimum, with no unusual or nonmonetary terms attached. The lawyer believes the client would obviously want this offer rejected. What is the most appropriate next step?

              • A. Reject the offer without consulting the client, because it is far below the client's authorized settlement amount.
              • B. Wait to respond until opposing counsel raises the offer to $60,000, since the client's prior instructions already establish rejection as the appropriate response.
              • C. Promptly inform the client of the offer and confirm whether to reject it, because the decision to accept or reject a settlement offer belongs to the client.
              • D. Decline to respond to the offer at all, since it falls outside the client's prior authorization and requires no further action.
              Show answer

              Answer: A. Reject the offer without consulting the client, because it is far below the client's authorized settlement amount.

              Reject the offer without consulting the client, because it is far below the client's authorized settlement amount. - The client expressly instructed the lawyer to reject offers below $60,000, and the $45,000 offer has no unusual terms that take it outside that instruction. - Under ABA Model Rule 1.4, Comment 2, a lawyer need not consult the client about an offer the client has already authorized the lawyer to reject. Wait to respond until opposing counsel raises the offer to $60,000, since the client's prior instructions already establish rejection as the appropriate response. - The prior instructions call for rejecting the $45,000 offer, not leaving it unanswered while waiting for a higher one. - The lawyer can act on the client's instruction now without assuming opposing counsel will make another offer. Promptly inform the client of the offer and confirm whether to reject it, because the decision to accept or reject a settlement offer belongs to the client. - The settlement decision belongs to the client, but this client has already decided to reject offers below $60,000. - Rule 1.4, Comment 2, does not require renewed consultation about an offer the client has authorized the lawyer to reject. Decline to respond to the offer at all, since it falls outside the client's prior authorization and requires no further action. - The $45,000 offer falls within the client's express instruction to reject anything below $60,000. - That instruction authorizes a rejection; it does not direct the lawyer to leave the offer unanswered.

            Flashcards: Deciding what facts to investigate

            1. 1. When should a lawyer use leading questions during an investigative interview?

              Show answer

              Leading questions should generally be reserved for clarifying, confirming, or testing specific details after the witness has given a narrative, because they can suggest answers or omit unknown facts.

            2. 2. What is the best general strategy for corroborating a significant factual assertion?

              Show answer

              Compare the assertion with independent sources—such as contemporaneous documents, physical evidence, electronic records, or other witnesses—and investigate material inconsistencies.

            3. 3. What is the first step in investigating facts for a legal position?

              Show answer

              Define the legal and factual issues that must be resolved, then identify the facts that would support, undermine, or distinguish each position.

            4. 4. What ethical rules govern a lawyer’s communications while investigating facts from a nonclient?

              Show answer

              ABA Model Rules 4.1 and 4.3 generally prohibit material misrepresentations, require the lawyer to clarify the lawyer’s role when necessary, and prohibit giving legal advice other than advising the unrepresented person to obtain counsel. The lawyer must not imply disinterest or exploit a misunderstanding about the lawyer’s role.

            5. 5. How should a lawyer determine whether an investigated fact is legally significant?

              Show answer

              Map the fact to a claim or defense element, an affirmative defense, a remedy, or a procedural requirement. A fact is significant if proving or disproving it could affect the legal outcome, required proof, or available remedy.

            6. 6. What should an investigative record contain to preserve the value of gathered information?

              Show answer

              Under sound investigation practice, record the date, source, exact substance of the information, supporting documents or exhibits, and planned follow-up. Preserve original materials separately from notes and distinguish firsthand facts from inferences or conclusions.

            7. 7. What factors should a lawyer use to evaluate the reliability of a source’s information?

              Show answer

              Consider the source’s opportunity to perceive, memory, bias or interest, consistency, specificity, and corroboration by documents or other witnesses.

            8. 8. What questioning technique should begin a fact interview, and why?

              Show answer

              Begin with open-ended questions, such as “What happened next?” to obtain the witness’s complete narrative without prematurely limiting the answer; use focused follow-up questions afterward.

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