These famous words were spoken by founding father, John Adams in his successful defense of the British soldiers charged with murder for the Boston massacre. Despite the passionate anger that the Massacre provoked in Boston, John Adams presented compelling facts that convinced the jury the soldiers were not guilty, because they had acted in self-defense when attacked by an armed mob.
Facts are central to litigation. Facts are the essential basis for the legal issues which will be debated by the lawyers and decided at trial. Claims and defenses are defined by facts, presented in the form of admissible evidence to a judge or jury. The rules of evidence center on the concern that facts presented in legal proceedings should be reliable and capable of corroboration. Principles such as cross examination and impeachment are designed to challenge facts, to test them and to present facts which are inconsistent with or which contradict those presented by the other party. At the close of a case, the jury or judge must weigh the evidence presented by the parties and determine whether they have proven their claims or defenses.
As stubborn as they may be, facts are also delicate and perishable things. In almost all cases, facts occur before litigation begins. Facts must be collected nurtured, recorded and carefully preserved for future use. The early recognition of problems and careful management and preservation of facts is of the greatest importance in preparing for successful dispute resolution.
The early indications of conflict in a business relationship are often subtle, business people tend to ignore these early signs at their peril. As soon as dissatisfaction appears in a business relationship, the following measures should be taken to create the best facts and preserve all facts relevant to the dispute:
Consult a Lawyer at the First Signs of Trouble
First, a lawyer should be consulted soon after the first signs of trouble. Early consultation with counsel often leads to quick and inexpensive resolution of the dispute. For example, if the relationship is governed by a contract, a lawyer’s advice and intervention may avoid or cure an outright breach and prevent costly litigation. Even if this is not possible, counsel may be able to assist in shaping the facts which will later be litigated. The lawyer may also be able to assist in preparing appropriate communications and legally sufficient notices. These may later make it clear that the client was not the breaching party; that the client’s breach was justified by the conduct of the other party; or that the other party had an opportunity to mitigate damages.
Facts Should be Developed In Advance of Litigation
Second, facts should be developed in advance of litigation. When possible, a party should be proactive in initiating communications with the other side. After consulting with counsel, one might consider reaching out in a non-confrontational manner to gain a better understanding of the problem. This is very important in the initial stages of a dispute, because at that point, the other party may not have thought to consult an attorney. If so, the discussions are more likely to be frank and open. The other party may be more prepared to fully explain the basis for his or her dissatisfaction, which may include useful admissions. The party initiating the communication should listen carefully and prompt the other side to fully disclose its views of the nature and cause of the dispute.
Material and Relevant Facts Must be Preserved
Third, all material and relevant facts must be preserved. If the discussion is by phone, the substance of the conversation should be memorialized as soon as possible in writing in the form of a memorandum describing everything that was said in detail. It may also be appropriate to summarize the conversation in the form of a confirming email to the other party. However, such a communication must be carefully prepared, preferably with the assistance of counsel, so that the facts are preserved and presented in a light most likely to be helpful in future litigation.
It is also very important to preserve all documents and electronically stored information which has any bearing on the dispute, including emails and text messages. The law now requires counsel to instruct the client to ensure that all relevant evidence is preserved and available for discovery in the event of litigation. Often complex litigation degenerates into accusations that one side or another has discarded, destroyed or hidden factual materials which should have been produced in discovery. This is a distraction from the real issues, escalates expenses of litigation and can undermine a good case. In addition, careful organization and preservation of factual material facilitates effective and efficient legal representation.
Frankness and full disclosure of all relevant facts to counsel are vital. It is not uncommon for clients to conceal bad facts from their lawyers. This is a grave mistake. If counsel does not know all the facts, especially the bad facts, the client will not be adequately represented. Bad facts are as important, and often more important, than good facts. If all facts, good and bad, are known in advance, clients and counsel can work together to plan the manner in which the dispute, and the bad facts, should be managed.
Facts cannot be changed once they have occurred. But with the help of competent counsel, those involved in disputes can guide the course of events to create, collect and store facts which will become stubborn advocates in litigation or result in the avoidance of litigation altogether.