An Ounce of Prevention ...
Andrew J. Marton
Whenever someone asks me what pearls of legal wisdom I can share with them, I tell them to be proactive and hire an attorney before the “it” hits the fan. This advice is based upon 20 years of experience as a litigation attorney.
The odds are that at some point in time you will encounter a problem that has a legal component to it. Perhaps it will involve an accident, an insurance or coverage question, contract negotiations or an employment-related matter. The initial impulse is to handle it yourself. But sometimes your best intentions can come back to haunt you.
For example, your first action may be to take a report and collect information or to report a claim with your insurance agent or provider. While all these activities may seem rather innocuous, they can lead you down a path that you may regret should the matter take a turn for the worse and develop into a lawsuit. Here’s why.
Any investigation you conduct may arguably be “discoverable” by your opponent if the matter evolves into litigation. This may compromise your legal defense if undesirable facts are discovered during the course of your investigation. However, if you retain an attorney to handle the investigation, you can shield the disclosure of most communications because of the attorney-client privilege. Similarly, outside investigation by the attorney or at his or her direction is typically afforded a qualified privilege from disclosure pursuant to the attorney work product privilege. Consequently, utilizing the services of an attorney during the initial investigation of a potential problem can shield the discovery of potentially harmful information.
Another important benefit of seeking legal advice early on is that your attorney should be familiar, at a minimum in general terms, with the likely issues relating to your situation. Consequently, your initial investigation will be less likely to miss or overlook important details.
For example, you may interview an employee, witness or another party relating to a complaint or issue and then close your file. Depending on the nature of the problem, the complaint for damages may not be filed until two to four years after the fact.
Your attorney may need additional information once the matter goes to litigation. But due to the passage of time, some individuals may no longer be around or may even be hostile to you. A now former employee may be difficult (i.e., costly) to track down, and there is now no real incentive for him or her to cooperate with you. This is even more true if the individual is living in another city or state.
Memories also fade over time, which poses the problem of trying to rehabilitate a witness with documents or other material that will hopefully refresh his or her recollection at a later point in time. Of course, by now you have expended a considerable amount of time, effort and money. So, in many cases, it is cost-effective to involve an attorney early on.
Other problem areas include the initial reporting of a claim or loss or negotiating a contractual dispute that may develop into a lawsuit. The concern here is whether you are creating evidence that may work against you in the context of a lawsuit. You have to be careful about the communication and/or paper trail you create, because you are creating a record that ultimately may be used by your adversary to prove or disprove a crucial fact. Inconsistent conduct can be quite damning in the eyes of a judge or jury.
It makes economic sense to consult with an attorney early on, so he or she can work with you behind the scenes to ensure that you get the best result possible in the long run.