What happened?

Getting to the real facts is the indispensible first step for any litigator, writes Samuel J Woff.

Whether advising or advocating, our first, and most important job, is to determine “what happened”.

In a small matter, the client can simply tell you. In large matters, we must piece the story together. This takes time. But it is an essential pre-requisite to the rest of our jobs.

Until we know what happened, we cannot:

• give legal advice. We cannot advise the client if we don’t know what happened to them. We can only guess how the law will apply.

• develop a litigation strategy. We cannot allocate resources without knowing the important issues. The only strategy possible is “gather more facts”.

• estimate costs. We cannot predict the cost of proving an unknown. Instead, we can only update the client as costs are incurred.

• ask for an expert opinion. If we cannot tell the expert what happened, we cannot get a sensible opinion in response.

• recommend a settlement amount. Settlement requires balancing the costs and merits of litigation. Until we know what happened, we know neither.

• accuse our opponent of wrongdoing. Any accusation is likely to lack detail, or be wrong.

• ask for justice from a decision maker. Before justice is issued, the decision maker will say “first, tell me what happened”.

In summary, we must first determine what happened. Only then can we make sensible decisions about what to do about it.

Our advantage

But if we know what happened, and our opponent does not, we have several advantages.

We can negotiate a favourable settlement. The seller knows the history of the car, and negotiates with a purchaser from a position of strength. Information is power. Should we desperately settle? Or can we be bullish?

Information is power.

If we don’t settle, we can plan for trial wisely. Knowing what happened means we can focus our resources on the important issues, while our opponent stretches themselves thin across a variety of issues, not knowing which are key.

We avoid waste. Suspicion comes readily in litigation. Any gaps in the story are filled in our minds with conspiracies about our opponent’s actions and intentions. This fuels a hunger for documents and information from our opponents. Suspicion is understandable, but rarely productive. But if we are confident in what happened, needless suspicion is allayed. Our client saves the costs of trying to pry documents from our opponents.

And if our opponent demands to inspect our documents, if we confidently know what happened, we know which to hand over willingly, and which to ethically resist. Being selective conserves money and energy for more important issues.

Our advocacy is more effective. A party which doesn’t know (or like) what happened will prefer rhetoric over substance. Manifestations of outrage may appeal to clients keen to score points, but are not very convincing. Simple statements of fact are usually better. Contrast the following:

Plaintiff

“On 16 December 2012 our client purchased a widget from the defendant’s website. It should have been clear to any reasonable merchant that that time was of the essence in relation to the delivery of said widget. However, the defendant, in contemptuous disregard for the plaintiff’s consumer and moral rights, caused or otherwise bought into being, a delay in the shipment of said widget. The delay of two weeks in the package’s arrival is unexplained and inexcusable, was not only in breach of contract the Vienna Convention on Contracts for the International Sale of Goods, it was also so egregiously late that it casts into question the defendant’s bona fides and their fitness to hold a licence to operate a widget business. The plaintiff seeks its full redress according to the law, including, inter alia, compensatory and punitive damages, non-pecuniary damages for emotional turmoil and legal costs on an indemnity basis.”

Defendant

“On 16 December 2012 the plaintiff bought a widget on our website. Unfortunately, a postal strike in the plaintiff’s country delayed delivery by two weeks. A postal employee is on standby to confirm this if necessary.”

The old joke is that if the facts are against you, argue the law. But verbal eloquence and legality are a poor substitute for a clear understanding of “what happened”. The plaintiff’s legal team was not able to get to the bottom of this question. The defendant calmly presented what happened to the court, and was more convincing for it. Good facts, like good ingredients, need little embellishment.

Good facts, like good ingredients, need little embellishment.

(I confess some exaggeration, but not much. The tone of the plaintiff’s submissions is replicated in similar form across the legal world every day).

If we know what happened, we can make allegations against our opponents with precision. If we don’t know, our allegations must be framed broadly (so as not to inadvertently preclude anything). But vague, broad and unsupported allegations are inflammatory, and the resulting mistrust mires litigation. Things that should be conceded become heated flashpoints. But if we know what happened, and can allege it with specificity and proof, there is a better chance our opponents will sensibly capitulate the point. This saves fuss.

Lastly, we can more accurately predict the cost of the litigation. Much cost uncertainty comes from not knowing what happened. How can you estimate the cost of proving an unknown? But once you know what happened, next steps are easier to plan. The surprises are mainly gone. Your client can budget with greater confidence. This relieves the unnecessary financial stress of blank cheque litigation.

(As a side note, it is probably futile to estimate the cost of actually uncovering “what happened”. Investigations are uncertain. They proceed in spurts and splutters. They stall, then a breakthrough is made. They are inherently unpredictable. The point is once the investigation is complete, and the story emerges, the remaining costs of litigating should somewhat ossify).

In summary, the more we know about what happened, the stronger our position. Omnipresence would render our advantage complete, and while this is impossible (some witnesses are inaccurate, some documents will be missing or misleading, some events vanish into history), there are good reasons to know more than our opponents about what happened.

Core expertise

But in complex litigation, uncovering what happened is difficult. The story will be fragmented across hundreds of witnesses and millions of documents. No one person or document will know everything. Lawyers must piece the story together, which requires good investigation skill.

Lawyers are professional sceptics, willing to assume nothing, and demand proof. This is a good start. But investigations are not our core expertise. Journalists, historians, scientists and detectives are trained to uncover what happened. Law school asks us to assume what happened, and apply the law. But we can improve.

Lawyers are professional sceptics, willing to assume nothing, and demand proof. This is a good start. But investigations are not our core expertise.

First, we must embrace the task. Knowing what happened is the bedrock of everything we do. It can lack the glamour of the law. But it is paramount. We must treat it seriously.

Second, we must prioritise. Court deadlines and correspondence with our opponents capture a disproportionate amount of attention because there is urgent accountability to comply. But we must be disciplined to focus on the important (investigating), not just the pressing.

Third, we must expand our scope. We often hunt for evidence and examples to support an argument and discard the remainder. This may make us a passable advocate. But without a complete picture of what happened, we cannot be a good advisor.

Fourth, we must report accurately. This requires sticking to facts. We must not jump to conjecture or opinion. Analysis can follow once what happened is clear.

Other advice exists. But regardless of the tactics used, the overall objective remains. To properly advise our clients, we must first understand exactlywhat happened.

Getting better

On 14 August 2018 a section of the heavily trafficked Morandi bridge northern Italy collapsed, tragically killing forty-three people. Once the shock and grief allayed, there was a furious and unsurprising demand for answers. What happened? Who should find out? The attributes of the perfect investigator provide us a good example to follow.

We would (of course) reject the company that built the bridge. It would be self-interested to exonerate itself. The investigators would be the judges in their own case. We would fear the report was biased. It would not be neutral and it would not be trusted.

Self-evidently, good investigators must avoid bias. But bias has many guises. Lawyers tend to investigate only to support a pre-determined position, looking for evidence to help our argument, discarding the remainder. This one-sided view of the world may make us a passable advocate, and many of us are content or constrained to leave our role at that. However, without an unvarnished understanding of “what happened”, we cannot be a good advisor.

Bias has many guises.

We therefore need to be able to change gears. Ideally, we should dispassionately assess all the evidence to determine what happened. Only then should we switch to advocacy.

When would we expect the investigation to start? Now! As with the bridge, evidence goes cold, and unanswered questions howl louder, with the passing of time. We must start quickly. Rubble must be immediately catalogued and preserved. Witnesses need locating and securing. Photographs must be taken.

The best tradition of legal fiction is for the truth to finally emerge at trial, at the crescendo of cross-examination (“Did you order the Code Red? You’re god damn right I did!”). However, while this makes exciting literature, it is not diagnostic of good preparation. To be effective, we need to know the facts sooner. We should therefore start as soon as possible.

Would we expect the investigators to do everything? Probably not! Specialists would help. A construction company would clear and catalogue the rubble. Forensic photographers would capture visual evidence of the collapsed section. Private investigators would collect statements from witnesses. Engineers would examine fractures. The investigator in charge would manage the effort and author the final report. Investigating the collapse the bridge, as in its construction, would be achieved with intelligent subcontracting.

Investigating the collapse the bridge, as in its construction, would be achieved with intelligent subcontracting.

Lawyers tend to horde all investigative responsibility. Why? Inertia partially explains — it’s always been so, and nervous clients may prefer orthodoxy. Two, lawyers tend not to accept any evidence we have not seen ourselves, which makes relying on others to perform any investigations difficult. Three, lawyers’ investigations will be privileged, helpful if the client’s story is unflattering.

The drawback is lawyers are not trained investigators. Bright and diligent certainly, but untrained. Where appropriate, we could look for opportunities to subcontract to specialists. There is nothing inherent in investigations which specially qualifies lawyers to perform them. Scientists, detectives and journalists perform similar tasks daily. This opens a field of possibilities as to how the work could be performed.

Would we expect our investigators to be serious about investigating? Yes! We would want them to be thorough, engaged and eager to investigate. After all, judgements will be made on the outcome of the investigation. It needs to be right.

Many lawyers like executing litigation tactics, or debating the law. Uncovering what happened is not always considered as interesting. But if we are to retain responsibility for investigating, we should do it with the same gusto. It is important, and deserves the same energy with which we approach law and tactics.

Would we expect the investigators to be trained? Yes! We would expect competence in capturing, organising and sharing facts. We would expect specialised tools and methodologies. We would not accept general intelligence as a substitute for specific knowledge.

Lawyers would benefit from training in investigative techniques and tools. Such training is uncommon. But if we accept Drucker’s observation that brightness is not a substitute for skill, we should make the effort to seek it out.

Making it easier

In complex litigation, investigations are time-consuming. But small things can help.

Investigations are easier if information is organised. It is easier to reassemble the bridge if we (1) know what the original looked like (2) have preserved all the rubble and (3) are confident nothing key is missing. This makes preserving and organising evidence — to the extent our client has not — is an important upfront investment.

Investigations are also easier if we focus. It is easy to investigate only in support of other activities — legal analysis, advocacy preparation — and not privilege investigations as important stand-alone activities. But so conducted, investigations become sporadic and haphazard, rather than planned and methodical. This unnecessarily inhibits effectiveness.

Knowing enough

Would we want the investigators to sort rubble for a decade? No! We need answers sooner.

Because it is important, and there is always more to discover about the past, trying to figure out what happened can be a never ending task.

Of course, figuring out what happened is a critical first step. But there othersteps we must get to as well. Like all good things, we need to know when we’ve had enough.

If we never have the courage to say “we know enough”, the client does not receive settled legal advice. It can also sap the energy of the lawyers — like penal labour, a never-ending task is demotivating. And it stunts a lawyer’s development as a lawyer, as the law is never considered.

Of course, we must be complete in our investigations, or they lose credibility. But we must be courageous to stop early enough to consider other issues before trial — advice, strategy, settlement — from a settled factual position.

We must be courageous to stop early enough to consider other issues before trial — advice, strategy, settlement — from a settled factual position.

Conclusion

When bad things happen, there is a natural human desire for answers. What happened? How could this have happened? For public disasters or crimes, public bodies usually investigate. Only once the conclusions have been reached do the lawyers become involved.

In the private realm, when something goes wrong (‘we have lost a lot of money’), lawyers who are looked to for both answers — what happened, and should we do? Clients therefore need good investigators as much as they need good lawyers. As in medicine, accurate diagnosis is half the cure.

Investigative skill receives little focus at law school, in continuing education, or when marketing ourselves to clients. However, it is foundational to our role. Without knowing what happened, we are merely swept along, with the client, in the current of where the case takes us, bemoaning the uncertainty of litigation. We cannot chart a course.