A Fact-Finding Test for Lawyers
Law schools have known for years that they turn out lawyers without training on how to gather facts. What’s changed recently is that law schools are starting to think this isn’t such a good idea.
My colleague Peter Tillers, with whom I teach a course in fact investigation, has rounded up some of the most compelling arguments in favor of more hands-on teaching of how to gather the facts lawyers need.
Facts matter, because before lawyers can ever get in front of a judge to argue the finer points of law as they rehearsed in moot court competitions, they need facts to help their case. Even without a courtroom in the picture, better facts make for better settlements.
How in the world can you tell how good a person’s fact-finding skills are? It’s always helpful to know before a court-imposed deadline looms, when the facts you need could remain stubbornly elusive.
Try the following test/exercise on new associates or even yourself:
1. Google yourself (or relatives if you don’t own property) and try to find public-records evidence of where you or your relatives live. What was paid for the house and what was the mortgage? Chances are you won’t be able to find much that’s useful, a good lesson in the limitations of Google searching. We’ve written about that here. Hint: do you really think a court would accept a price on Zillow.com as evidence of anything?
2. Now try to find the deed and mortgage another way, with public-records sites at county level. Start here to see where your county’s website is. Still couldn’t find it on line? Perhaps that’s because the vast majority of records in the U.S. are still in hard copy only. You have to go to a county records office and get them (or hire someone to do it for you).
3. Now pick a store near your office and try to find out who owns the company that runs the store and owns the building it’s in. You will probably need a combination of property records and filings from the Secretary of State.
Things get trickier when you get into the area of finding assets, including figuring out whether your person owns shares in an LLC or partnership he doesn’t want you know about. If you can’t reasonably expect someone to get a simple deed or incorporation record, the advanced stuff will most likely prove completely elusive.