In client representation, fact investigation is an integral part of building a case. However, it is also one of the more challenging topics to teach. When a student researches law, she enters specific search terms into Westlaw or Lexis because she knows exactly what kind of case law she hopes to find and use as precedent. We teach our students that looking for cases that say what the lawyer wants them to say is an uncontroversial, and foundational, component of any legal research. On the other hand, students tend to be more squeamish about envisioning what they hope to find when conducting factual - as opposed to legal - research. And, truth be told, we are often more squeamish about teaching it.
This session will explore how we teach investigation. Virtually all clinicians teach fact development in one form or another. Most criminal clinic syllabi, for example, include nuts and bolts investigation skills training in topics such as “client relationships” and “witness interviewing.” In general, clinicians are comfortable teaching those subjects and teach them well. But we suggest that we could do a better job of teaching the advocacy inherent in, for example, asking a witness what she saw; reviewing an agency report; searching through files in a court archive; taking crime or accident scene photos; and other common investigative tasks. Despite the way they are typically envisioned, these critical tasks are no more “objective” than any other aspect of the representation of a client in an adversarial system.
Through the use of multiple examples of pedagogic techniques, this session will demonstrate how to teach students to develop a plan of attack as well as follow-through for fact investigation. We will provide concrete exercises and approaches that new and experienced clinicians can takeaway and incorporate into their own pedagogy.