The what and why. What is the dispute about? This is usually the easiest element to identify. For litigation matters, it often boils down to the potential causes of action arising from the dispute. The what often evolves, however, and your road map should note other areas, both factual and legal, to which the dispute might spread. For example, a breach of contract case might turn out to have a tortious interference element that won’t become apparent until after you have interviewed the business people managing the relationship. When you describe the dispute in the road map, you should note other related and potential causes of action that should be investigated or ruled out.
Why did this dispute arise? The why is more elusive, but the greater your understanding of the why, the higher the level at which you will litigate your case. Try to find out from your client the business climate that led up to the dispute:
How long have the parties been involved with each other?
What was the state of the relationship prior to the dispute?
How does the value of the dispute compare to the overall financial health of the client?
Has a business-to-business resolution been attempted? If so, why did the attempt fail?
What else besides money is at stake?
Consider issues such as the parties’ reputations, whether the dispute impacts your client’s ability to do business with third parties, your client’s desire to continue or discontinue the relationship, and—last but not least—any personal feelings that might affect how the business people will approach the litigation or affect the possibility of settlement.
Some associates may feel that the why is not within the scope of their duties; they may not see the value in understanding these nuances in order to fulfill their functions in the case. This is a career-limiting attitude. Associates should think of themselves as future partners, who must understand the fundamentals of their client’s business and how their services fit into the whole picture in order to best serve the client. Depending on the client-lawyer dynamics, associates may feel more comfortable asking these questions of the partner in charge, rather than the client. But either way, knowing the why will inform almost all the decisions you make in the case.
The where and when. Where did the acts underlying the dispute occur? Where are the key witnesses and documents located? Where is the defendant located? If the witnesses are out of the area, will they need to be subpoenaed to provide testimony? The answers will help you not only identify the likely jurisdiction and venue for the potential action, but also highlight early on potential issues such as difficulty obtaining discovery or added costs related to litigating out of your immediate area. These potential issues should also be recorded in the road map. They will assist the partner in charge with drafting a budget for the matter.
When did the acts underlying the dispute take place? Raising statute of limitations questions early on can have a huge impact on the value of any recovery or the cost to litigate. The when also will get the team thinking about whether there are issues of evidence spoliation or other stale-case issues, such as the need to locate witnesses who are no longer associated with the parties.
The who. Who are the parties? To properly identify the parties, you need to consider everyone who had a stake in the subject matter of the dispute, not just your client and the person or entity identified as the opposing party. Right at the outset, have your staff investigate the opposing party by doing a corporate entity search with the relevant secretary of state, an Internet search to collect initial information on the opposition’s business and assets, a party-name search in the relevant jurisdiction to find other litigation in which the opposing party may be involved, and a property records search. Any additional potential parties should be added to the road map and flagged for further investigation.
Who are the potential witnesses? Identifying potential witnesses requires going beyond the four corners of any documents you are given. The person who signed the contract may not be the one who negotiated it, for instance. The best way to identify witnesses is to interview your client, so schedule those interviews as soon as possible after you receive the case. You will also want to identify all the business people who had contact with the opposing party, whether or not they are directly involved in the dispute.
Witnesses come and go. You will need to identify where they are located, for whom they currently work, and how much information they are likely to have. All this gets included in the road map.
Finally, identify as early as possible and add to the road map persons whose assistance you will need to move the case forward, such as document custodians who might need to prepare production affidavits, IT personnel who will assist with e-discovery, and potential expert witnesses. Once witnesses are interviewed or deposed, hyperlinks or document reference numbers should be added to the road map, as well as a brief description of the value of the witness’s testimony.