It’s often said that we live in a very litigious society, where people are suing other people or companies all the time. There are a myriad of circumstances that can expose a person or company to litigation including failed businesses or partnerships, the use of questionable business practices, perceived employment or housing discrimination, environmental or real estate development protests, alleged personal injury, and contentious divorce and family matters.
These are just some of the variety of reasons organizations or individuals may wind up in court, which means you and your company are at risk for litigation. For those unprepared to face litigation, risks can increase the costs and the likelihood of an unfavorable outcome in court.
In this post, former Pinkerton Director and former Suffolk County Assistant District Attorney Ellen Lemire provides insight into how legal firms can manage corporate risk during the litigation process and two key areas where in-depth investigations are required to gather vital information.
“A lot goes into investigating a legal claim or other action, but lately we’ve seen a lot of activity around corporate risk management, due diligence, witness location, and interviewing,” said Lemire.
Know thy enemy
Perhaps “enemy” is too strong a word here, but this oft-used phrase derived from “The Art of War” by Sun Tzu is relevant when preparing for ligation. The full context of the quote is even more applicable:
— If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle. —
Risk management and due diligence are key to understanding the forces a organization or individual faces with the actual or potential threat of legal action. Lemire gave an example of how it helped a recent client.
“We were asked by a real estate development company to help them find out about possible obstructions to their proposed development. Several groups had formed to block the development and the law firm needed to know how at risk their client would be. We initiated an investigation on several fronts to present a full picture of what was coming down the pike,” said Lemire.
One of the groups voicing their objection was the surrounding property owners. They were organizing a potential lawsuit to stop the development.
“The law firm needed to know where their client was vulnerable and the level of resources this opposition group would potentially have,” said Lemire. “We researched the key players to determine the overall risk.”
Using public records, Freedom of Information requests, court documents, physical surveillance, and even social media activity, the team amassed information that could provide some ammunition to diminish or counter the local real estate owners claims and credibility before a judge or jury. It was also important for the defending law firm to understand where their client, the development company, was vulnerable.
“We used the same tools used in business risk management — risk assessments and threat analyses — to discover any potential issues regarding the company’s practices and reputation that could come back to haunt them during these proceedings. It’s always good to know the threats and risks,” said Lemire.
Lemire also noted a company’s need to establish a business risk management plan and keep a tight lid on their own information so that it does not leak out and become part of the other side’s case.
“Often, we will use Technical Surveillance Countermeasures to ensure that there are no listening devices or other spying instruments being used in boardrooms, hotel conference rooms and other areas where sensitive information is discussed.”
You have to find them first
While a due diligence investigation provides a wealth of background information, witnesses can also play a key role in litigation support activities… if you can find them. And it is often not an easy task but requires access to investigative skills that most companies and law firms don’t possess.
“We had an assignment once regarding a big accident that took place between two cargo trucks,” Lemire explained. “The law firm representing one of the companies involved knew there were many eyewitnesses. However, the potential witnesses were truckers who traveled cross-country on a daily basis. Finding them was going to be a big challenge. We were successful because we had a national network of associates that could assist in the investigation.”
Not all witnesses are “good” for a company. That is a big part of the witness interview: determining if they will provide positive or negative testimony regarding a company or individual.
“Finding the witness is one thing,” said Lemire. “Knowing how they will present their account of the situation is another. We are hired to discover who would be beneficial witnesses and who to avoid. It sometimes boils down to demeanor…are they telling the truth and do they seem trustworthy. And you can only find that out via face-to-face interviewing.”
Mitigating risk and supporting litigation
Lemire said that litigation support is a rapidly growing part of Pinkerton’s business.
“It’s a natural fit for our company since we are the world’s first detective agency. We’ve always had experienced investigators and now we have them throughout the world. As global organizations get involved in litigation that spreads across many nations, that network is a critical benefit.”