Lawyers need to find witnesses. They look for assets to see if it’s worth suing or if they can collect after they win. They want to profile opponents for weaknesses based on past litigation or business dealings.
Every legal matter turns on facts. Most cases don’t go to trial, fewer still go to appeal, but all need good facts. Without decent facts, they face dismissal or don’t even get to the complaint stage.
Do law schools teach any of these skills? Ninety-nine percent do not. Good fact-finding requires something not taught at a lot of law schools: innovation and creativity. Of course, good judges can maneuver the law through creative decisions, and good lawyers are rightly praised for creative ways to interpret a regulation or to structure a deal.
But when it comes to fact gathering, the idea for most lawyers seems to be that you can assign uncreative, non-innovative people to plug data into Google, Westlaw or Lexis, and out will come the data you need.
This is incorrect, as anyone with a complex matter who has tried just Googling and Westlaw research will tell you.
The innovative, creative fact finder follows these three rules:
- Free Yourself from Database Dependency. If there were a secret trove of legally obtained information, you would be able to buy it because this is America, where good products get packaged and sold if there is sufficient demand for them. And Google won’t do it all. Most documents in the U.S. are not on line, so Google won’t help you. For any given person, there could be documents sitting in one of the more than 3,000 counties in this country, in paper form.
- If you use a database, do you know how to verify the output? Is your John C. Wong the same John C. Wong who got sued in Los Angeles? How will you tell the difference? You need a battle plan. Can your researcher arrange to have someone go into a courthouse 2,000 miles away from your office?
- How will you cope with conflicting results when one source says John C. Wong set up three Delaware LLC’s last year, and another says he set up two in Delaware and two in New York?
- Fight Confirmation Bias. Ask, “What am I not seeing?” Computers are terrible at the kind of thought that comes naturally to people. No risk management program said about Bernard Madoff, “His auditor can’t be up to the task because his office is in a strip mall in the suburbs.”
- For your researchers, find people who can put themselves in the shoes of those they are investigating. Not everyone can say, “This report must be wrong. If I were in the high-end jewelry business, I wouldn’t run it out of a tiny ranch house in Idaho. Either this is a small business or Idaho’s not the real HQ.” If someone doesn’t notice a discrepancy as glaring as this, they are the wrong person to be doing an investigation that requires open-mindedness.
- Don’t paint by numbers. Begin an investigation on a clean sheet of paper. Don’t base your investigation on what someone’s resume says he did. Verify the whole thing.
- Look not just at what’s on the resume, but look for what was left off Jobs that didn’t go well, and people who don’t like the person.
- Despite that your client tells you, they don’t know everything (if they did they wouldn’t hire you). If your client thinks you will never find a subject’s assets outside of Texas, look outside of Texas anyway. You owe it to your client.
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