To repeat the question: What procedure or sequence of procedures should one use when an investigation is in an exploratory phase and everything seems to be a bloomin' and buzzin' confusion; i.e., what sequence(s) of procedures should an investigator use when evidence is sparse and the issues are ill-defined?

1. Although the legal literature on strategies in exploratory fact investigation is not vast, some legal observers have written about exploratory or preliminary fact investigation. Professor Thomas A. Mauet is one such observer. In his book PRETRIAL (4th ed., 1999) Mauet suggests the procedure a lawyer-investigator should use. He recommends structuring both formal and informal investigation around the elements of legal claims and defenses. See id. at pp. 5-11. He advises lawyer-investigators to use a chart such as the following one (which is a simplified version of the one found at id. p. 5):

This sort of chart or checklist plainly has value. The chart is a version of the sort of "legal marshaling" that I describe elsewhere. See, e.g., notes on legal marshaling. See also Section C.9 of Part I of "A Theory of Preliminary Fact Investigation"

But Professor Mauet's approach, rather than solving the problem of a bloomin' buzzin' confusion, seems to ignore it. While it may be true that at some point the organization of evidence and investigative activity on the basis of the elements of substantive legal rules is necessary, the uncertainty in a bloomin' buzzin' confusion -- in exploratory investigation -- may be such that it is is not possible even to identify the substantive legal rules that may eventually come into play. (For example, it may not be clear whether a David Defendant physically touched a Peter Plaintiff or, instead, said some nasty things about a potential Plaintiff. Indeed, it may not be clear that the things that Defendant did -- whatever they were -- make it more than merely conceivable that Peter Plaintiff might become a plaintiff; the evidence might be such that it is more likely that Legal Litigant, if anyone, might have a valid legal claim against Defendant. In this kind of situation it might be premature to identify potential legal claims against Defendant [or Litigant] and their elements.)

• In Professor Mauet's defense it might be said that he had in mind situations in which there is sufficient evidence to establish the general thrust of the probable legal claims and defenses in a lawsuit and that his discussion is meant to advise lawyer-investigators how to investigate and prepare their cases under such circumstances. If so, however, we are still left with the question: What is an investigator to do in the midst of a bloomin' buzzin' confusion?

• My observation (above) that a commitment to a legal rule-based approach to investigation ignores the bloomin' buzzin' confusion that investigators sometimes confront seems to be a criticism of this approach. But 'tain't necessarily so! A lawyer or other investigator might, for example, "rationally" -- sensibly -- think the following thought and take the following position: "I am expert in certain kinds of cases and I only want to pursue those kinds of cases -- precisely because I am so good at investigating and tying those kinds of cases (e.g., automobile accidents involving drunk driving, accidents caused by potholes, violations of implied and express warranties of fitness for durable retail consumer goods, or whatnot)." This approach does illustrate that preferences (among other matters) can influence how fact investigation is conducted; this approach suggests, quite properly, that the choice of investigative strategies is not determined solely by epistemic considerations -- such as the existence and character of evidentiary hints of the existence of some transgressions of legal norms. So it is not possible to say that an investigative strategy that is likely to foreclose the discovery of some possible legal transgressions is necessarily "irrational," insensible, or unwise. (By the same token , even if an investigator knows that he or she wants or should pursue cases that fall within a certain legal category or categories, it does not necessarily follow, I think, that an investigator should structure all phases of his or her investigation by the sort of decomposition of legal claims and defenses that Mauet describes. For example, in such circumstances an investigator might sometimes be better advised to proceed by constructing a scenario [or scenarios] and investigating that [those] scenario[s].)

2. It is easier to criticize a recipe than to construct one. If (under certain circumstances) Professor Mauet's recipe (see above) is either wanting or incomplete, is there a better recipe at hand? I have suggested elsewhere on this web site that the answer is "no." But it is possible that my negative answer is the result of my own intellectual limitations and my incomplete research.

Although I still do not think that it is possible or useful to prescribe an invariable set of procedures that should govern exploratory fact investigation (or any other phase or type of fact investigation!), I do now think (i) it is possible and likely that certain types of evidence marshaling operations tend to come to the fore in exploratory fact investigation and (ii) it may be possible to lay out certain sequences of investigative activities that are likely to be useful in exploratory fact investigation.

However, any potential recipe for investigative work ought to have the following characteristics: (i) there should be more than one recipe, (ii) the alternative recipes (to be useful) ought to be triggered by alternative sets of circumstances confronting an investigator; i.e., any general formula for investigative activity should say that under circumstances a an investigator would be well-advised to use (or should consider the use of) recipe x, and under circumstances b an investigator should consider investigative recipe y, and so on; and (iii) any such recipe should be viewed as a suggestion and an investigator should feel free to depart from the recipe when his her subjective judgment is that such a departure would be wise. In short, any such recipes for investigation are little more than default procedures.

• But to call such recipes default procedures is not to denigrate them. Default procedures can be extremely useful -- particularly for an investigator who feels adrift and [believes that (s)he] has no good idea what to do.

So: I think the development of recipes for the conduct of investigative work may be possible. However, candor forces me to say that I do not yet have a collection of such recipes! Perhaps, in this class, we can make some progress toward the development of such recipes.

What would a useful recipe look like? Please stay posted. Today is April 22, 2002. I may have some words about this question in a week or so., and I may even have some partial examples (of recipes) to offer.

For the time being: Here is a very, very rough example of one possible recipe -- one possible seuquence of marshaling and investigative procedures and steps:

evidentiary trifle(s) [bit[s] of evidence] -->; possible event(s) --> scenario(s) --> mapping elements of (possible) legal claim(s) on the scenario(s) --> revision of scenario(s) --> gathering of evidence to support hypothesized events in scenario(s) ---> gathering of evidence suggested by retroductive reasoning to eliminate possible scenario(s) and possible events in scenario(s) --> assessment of strength of evidence for elements of pertinent scenario(s), including ---> construction of chains and webs of inferences in support of events in the (remaining) scenario(s) --> assessment of strength of evidence for the scenario(s), by analysis of the credibility of pertinent witnesses --> assessment of weight of evidence as a whole --> assessment of "case theory" (assessment of the case as a whole, assessment of the consistency or inconsistency of the various (numerous) parts of a case)

• A different route (recipe) might well be taken (followed) when -- in the words of Professors David Binder & Paul Bergman -- there is a moment (or interval) of "substantive significance" -- a moment that, for example, rather clearly suggests a dispositive legal theory or theories (e.g., criminal homicide) or, alternatively, a moment that suggests a pertinent scenario (e.g., a large amount of money in the employer's till is missing and based on this and other information the following scenario emerges: David Defendant, feeling financial pressure, craved money desperately, removed the money from his employer's till during lunch, and flew to Brazil to celebrate Carnival and avoid apprehension and extradition).

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