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Developing the Factual Story of the Case

Every dispute has two sides -- and probably not the two you have in mind: One is the process itself, carried out by lawyers with pleadings, filings and the like. The other is the evidentiary side, where facts reign supreme.

Developing the Factual Story of the Case

By the time a dispute formally begins with the filing of a complaint or equivalent pleading, the underlying facts of a case -- aka the details of everything that led to it -- are largely if not entirely set in stone. The challenge is uncovering these facts and piecing them together. In complex cases, litigators need to gather, review and analyze large volumes of data just to get a basic understanding of the matter. This is where fact management comes in, a critical component of case preparation that legal teams must perform throughout the life of the dispute.

At its core, fact management is the process of understanding what happened. That means identifying, collecting, and organizing all the information that is relevant to the matter. This information can come from a wide range of sources, including emails, electronic documents, texts, social media, hard copy documents, witness statements or interviews, public filings and many more.

Effective fact management is essential to litigation success for several reasons:

1. Uncovering the story of the case: A lawyer's understanding of what happened in a case evolves over time. For example, your understanding of the case after reviewing the first 20 documents your client sent at the outset is very different from your understanding of the facts when your team has completed discovery and review over millions of documents. But without this understanding, there can be no success. Legal teams need a thorough evidentiary foundation in order to identify key issues and develop a comprehensive strategy for presenting the case. With a detailed knowledge of the factual story, lawyers can better understand the strengths and weaknesses of their arguments, as well as the other side's. Plus, it allows you to develop a clear narrative that will resonate with judges and juries.

2. Optimize the discovery process: Proper fact management helps streamline the discovery process, which is often a major source of cost and delay in disputes. If you do not have a grasp on the facts, you will not know what to look for in discovery. Fact management makes discovery more efficient by helping you focus on the issues, people and time periods that matter. This helps reduce the time and expense associated with needless review and focuses the team on higher value projects.

3. Improve collaboration throughout the case: With fact management or case management software, teams can create a central repository of all case critical evidentiary information. That includes key documents from review, facts and events from interviews and depositions and detailed work product and analysis. This ensures that everyone is working from and refining the same factual universe over the course of the litigation. Whether you are preparing for depositions, witness interviews, hearings or trial, it is important that everyone is up-to-date on the evidentiary chronology. This will reduce the risk of errors and inconsistencies at every point of the process.

In sum, effective fact management is essential to getting the results you want in litigation and arbitration. By organizing and understanding key facts and evidence, case teams can develop a stronger case, streamline the discovery process, reduce errors and improve collaboration throughout the dispute process.

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