Due Diligence in the Litigation Process
I start every consultation regarding a litigation issue by getting the facts from a client—all of the facts. Some facts are favorable, some are unfavorable, but all facts are necessary. It is sometimes difficult for a client to disclose unfavorable facts, but I am not judgmental. Knowing the facts at the outset instead of being surprised later gives us an advantage. I consider this due diligence, which I learned when I started practicing in Boston. A frequent assignment of mine at that time, as an associate in a fifty-attorney firm, was performing due diligence—systematic, thorough, persistent investigation of the facts of each case, then researching the law as it applied to those facts.
The next step with my client is to review their options: negotiation, mediation, and litigation. If they have chosen litigation (or are strongly considering it), I explain the tools available in circuit court discovery:
- Interrogatories (written questions under oath);
- Request for production of documents (providing documents requested, including email, contracts, all banking records and telephone records if applicable); and
- Depositions (in person questions by me or another attorney of the parties to the litigation and witnesses with a court reporter present to record the answers, which are used both to gain information and to use in court to impeach that person’s testimony, if it is different).
I then discuss the costs of going forward with litigation—costs include money, time, and energy—with a client to help the client make a decision whether or not to move forward with litigation.
Finally, I recommend to a client before making a complicated decision in any subject to write down his or her answers to four questions:
- What do I gain if I do it?
- What do I lose if I do it?
- What do I gain if I don’t do it?
- What do I lose if I don’t do it?
I have learned that directing a client to a logical, analytical approach to potential litigation (as opposed to an angry, emotional approach) usually produces a more satisfactory decision.