November 17, 2015 Articles

Need a Competitive Edge? Try a Case Road Map

By Ariadne Montare

Whether your litigation matter is time-sensitive, cost-sensitive, or mission-critical, proper case management is essential to achieve the best result for your client and give you an edge over your competition. Planning and organization from the outset will help you identify the proper path to take and keep you on track and on budget. To do this I have developed an essential management tool, a case “road map” that records and assesses the knowledge gained from case intake, client interviews, discovery, and research.

The road map is a vital resource for the “who, what, where, when, why, and how” of the case. It is a contact list for all key personnel (both internal and external), an analysis of the case’s strengths and weaknesses, an assessment of potential damages, a guideline for initial pleadings, and a strategy plan for moving the case from inception to resolution.

Properly executed and maintained, the road map is a living document that should be reviewed and updated regularly by all team members. One of the road map’s key functions is to quickly bring new team members up to speed. It also provides the key information that will be needed to draft the background sections of court filings and case status reports.

Even if you are the only attorney, however, a road map will refresh your memory as to the case’s fundamentals, eliminating the need to flip back through emails, memos to the client or file, or court pleadings to remember what is going on in the case or to figure out the next steps. I have found a road map to be useful for all cases, no matter the size. It is indispensable for time- and cost-sensitive matters. And a road map works equally well for both plaintiffs and defendants.

The Five Ws
Whether you call it intake, fact finding, or investigation, gathering as much information, and the right kind of information, as early as possible in the case is essential to give you a competitive edge. In order to properly plan out a case’s trajectory, you need to know the five Ws famous to journalism and crime shows: who, what, where, when, and why. The five Ws will help you develop the how, as in how best to move your case to a successful outcome.

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.

The How
After you have filled in the five Ws, you are ready to start on the how, the analytical sections of your road map.

 

Potential causes of action/defenses. Your initial investigation should give you the information you need to develop your potential causes of action and/or your defenses. Include in this section an initial assessment of the strengths and weaknesses for each. This provides a valuable tool for discussing the case with your client. As the case progresses, it also provides a reference point for you and your team to reevaluate why certain claims or defenses were or were not pursued.

Damages assessment. The damages assessment is critical to helping the client determine how much money to spend litigating the case and when is the appropriate time to consider alternative dispute resolution such as mediation. The goal of the initial assessment is not to arrive at an exact number, but to identify the potential sources of damages and the legal theories upon which any recovery can be based. Identifying the elements necessary to establish your damages will guide you in determining what kind of evidence you must discover and develop to make the case worth litigating. The information obtained from investigating the who will help you determine early on what assets are available to satisfy a damages award and identify issues that might arise in levying against those assets. If you are defending, assessing potential damages will help your client prioritize the litigation against its other business goals.

Case strategy. After the initial fact finding, you will most likely have a client meeting where you discuss your team’s recommendations for litigating the dispute. The agreed-upon plan should be memorialized in the road map as a reference for the entire team. It should be updated if the strategy changes, with dated entries describing unforeseen obstacles, newly discovered key evidence, or other factors that substantially affect the course of the litigation. These notes are especially helpful to bring new members of the team up to speed, and they also may be used to substantiate fee applications or contested invoices.

Additional information. The road map should also contain a contact list for the parties, their counsel, the assigned judge, court personnel, and in-house counsel. Hyperlinks can be added to the judge’s procedures, the court’s local rules, and the parties’ websites. Depending on the size of the case, the road map should include either a chronology of events or a link or reference to a separately existing chronology. It should also have a list of “hot docs,” or a link or reference to a separate list that is updated regularly as the case progresses.

The case debrief. After the litigation has been resolved, make time to review the road map and comment in a final section on problems or unforeseen obstacles that arose, how they were resolved, how they could be resolved in future cases, and any impact that the case may have on the client’s other matters. The team should consider whether any documents generated for the case might provide a useful template for future matters, either for this particular client or for the firm as a whole.

The Road Map as a One-Stop Shop
In the end, the road map should be a one-stop shop for all critical information regarding the case, so that anyone in the firm can refer to it and get up to speed on the case essentials in a short amount of time. As the case develops, links and references should be added to essential work product, such as legal research memos, summary judgment pleadings, or any document that would be necessary to prepare an attorney for a client briefing or a hearing in the case. When the entire team uses and regularly updates the road map, it will serve as an invaluable repository that removes the fear of “institutional knowledge” walking out the door should anyone leave the team before the case is resolved. The high level of organization that a properly maintained road map represents will impress judges, clients, and opposing counsel alike, and it will ensure that you always have at your fingertips all the information you need to project mastery of your case.

Keywords: litigation, woman advocate, case management, road map, litigation strategy, young lawyers


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