Step 1.1.1: Identify the likely sources of information
Identify the sources of information that will likely contain relevant facts. For example, trial lawyers get the facts, first, by interviewing the client. Ask your client to provide a chronological step-by-step account of the events that led to the problem.93
Brainstorm all other possible sources of facts. For example, consider whether any of the following sources might contain useful facts.94
Table 2: Brainstorm likely sources of facts
Law students will often find the facts of the problem neatly put together in the exam question. You also have the advantage of knowing that the facts of a problem in a subject called 'Torts' or 'Contract' concern those areas of law. Real-world problems do not provide the facts so neatly. You must learn how to find them.
Law teachers can teach students 'real-world' fact collection in several ways.95 For example, ask your students to sift through some mock documents, such as memos, letters, and transcripts. Those documents should contain both relevant and irrelevant facts, and not in the neat, orderly way in which facts appear in an exam.96 You could also set-up a mock client interview.97
Appellate lawyers get the facts from the appellate record. The appellate record includes the pleadings, exhibits, transcripts of testimony, and the judgment of the court or courts below.98
Research Lawyers get the facts from the lawyer or lawyers conducting the case. If, as a Research Lawyer, your lawyer–client has asked you to help them in an appeal, then you should get a copy of the appellate record.
Table 3: Different sources of facts for different users
95 For 4 simple techniques, see Henry Wigglesworth, ‘Breathing Life into Facts’ (1997) 12(1) Second Draft: Bulletin of the Legal Writing Institute 10.
96 Henry Wigglesworth, ‘Breathing Life into Facts’ (1997) 12(1) Second Draft: Bulletin of the Legal Writing Institute 10.
97 See, for example, Ben Bratman, ‘“Reality Legal Writing”: Using a Client Interview for Establishing the Facts in a Memo Assignment’ (2004) 12(2) Perspectives: Teaching Legal Research and Writing 87.
98 Edward D Re and Joseph R Re, Brief Writing and Oral Argument (9th ed, 2005) 77.