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Nov
28

Help Your Case Hold Water By Documenting

The theory of a case without supporting facts is just that — a theory — nothing more. I experienced this for the first time about a year ago as a student attorney in the Family Advocacy Clinic in law school. I was sitting across from my professors excited to tell them what I sincerely believed to be a convincing theory of my case. When they questioned, “what facts do you have to support it” my mind searched for an answer, but I had no reply. I envisioned my theory looking like a once full tub now rapidly draining. At that moment, I truly learned that supporting facts are the linchpin of a legal theory’s ability to hold water. To uncover these facts, I needed to conduct a fact investigation. This bath tub analogy resonated with me and as a newly minted associate transitioning into practice, it continues to be an indelible lesson.

Cases and clients are all unique, meaning fact investigations for each case vary depending on its nature and complexity. The best source to help facilitate and expedite fact investigation is the client. In my very green legal career, I have worked with clients who retained no records, clients who kept detailed records, and clients who fell somewhere in between and it is fair to say that where more detailed records are available, the more effectual the fact investigation.

No scientific formula exists for performing fact investigation, but for those who anticipate litigation in the future, there are ways to help the case “hold water.” One good habit is to keep all records, such as bills, bank and credit card statements, tax returns, receipts, and the like, storing them physically or electronically. While keeping documents can help streamline fact investigation, not retaining certain documents is not likely to be particularly damning. However, the same cannot be said for specific events that may help bolster a theory.

Often, a series of specific events that occurred can help strengthen a theory, but unlike documents, which are more concrete, more easily traced, and more easily reproduced, recollections of events are fleeting and can only be found in the memory of the person who experienced it. This is particularly true in family law, where the majority of theory development is rooted in the information the client reports. Details of events dissipate over time, lose value, and can eventually become unrecoverable. For these events to be germane to a legal theory, they must be documented soon after they are perceived to preserve the details and clients should be encouraged to do so, for example by maintaining a journal or log.

My professors used to constantly remind me to “document, document, document,” as a case unfolded. What is needed in a fact investigation can be unpredictable, but the more facts that can be documented the better because you do not usually know which facts will be relevant until the case fully evolves. This advice is not only applicable to lawyers, but is also useful for those who are in the midst of or anticipating litigation. Maintaining records and documenting might not be regular habits for most, but in litigation, these habits can help promote efficiency and economy in litigation by making fact investigation a collaborative effort between client and lawyer, and can most certainly impact the outcome of the case.