By: Neil McLean, Discovery Consultant
Evaluating the merits of a case prior to filing a civil suit is one of the most important tasks a plaintiff’s attorney must perform. Usually this is done in a meeting, or series of meetings, during which the potential client will disclose the who/what/when/where/why of their case and you’ll weigh the factors that will ultimately decide whether or not you will formalize the partnership to seek justice.
One of the many challenges of this process is that you must trust that what your client has disclosed to you is true. One talent shared by most successful litigators is the ability to recognize when your client may be “bending” the truth. Many times this is not so much an intentional act, rather error by omission.
Do you remember the content of your emails, social media posts and text messages from last week? Last month? Last year?
With so much of today’s evidence used in civil cases now petrified for eternity, nobody can remember all of the important details that will inevitably come to light. Understanding what potential evidence your prospective client may have created is now a requisite for a successful practice. It is certainly useful in the prevention of learning damning information about your client during the production phase or worse, in front of a judge during a hearing or trial.
From years in this industry, I’ve seen there is room for improvement in how counsel can objectively investigate the facts of a case, and be aware of any potential liabilities before the unrequited expense of precious financial and human resources occurs.
Here are the four main available sources of information that will assist in this comprehensive investigative approach:
1. Personal/Professional Email Accounts
Performing a quick and highly targeted review of your client’s emails that may be subjected to future discovery requests or that may be used by opposing counsel is now less invasive and more affordable than ever. By using basic and simple methods for identifying crucial emails such as looking for messages during a specific timeframe to or from your client to a specific person, doing a basic keyword search for terms at stake, or even looking at communication with a specific email domain can all provide powerful information to use in case evaluation.
2. Personal Devices
It is important to know if your client has communicated information to any potential witnesses or defendant’s that would be counterproductive to the suit. A good place to start would be to collect data from the personal devices of your client. This can include text messages, call logs, third-party messaging apps, location history, photos, etc. Anything that may be available to fill in cracks or help calculate the risk of a case.
3. Social Media
We live in a time that allows people to represent themselves in the digital world through several platforms, and the information we choose to post online often beholds us to past thoughts, moods, or affiliations. Publicly available Twitter, Facebook, and Instagram posts in the hands of an experienced, opposing litigator can be used to represent a multitude of things in the eyes of a jury.
To prevent this from becoming an issue, it is recommended you first collect all information that may exist for public consumption in its present state, and then adjust all privacy settings of your clients’ accounts to their most secure state so the only information accessible from interested parties will come in the way of anything produced as responsive to discovery requests, allowing you to have maximum control over what can be digested by opposing counsel.
4. Background Check
Having a comprehensive background check generated for all known parties can provide valuable information related to the case. It is often useful to have a snapshot of your client’s and involved defendant’s geographical history, political affiliation, family history, employment history, criminal record, etc. This information is often a useful supplement to painting a personal profile for either your client or defendant’s in a light that is consistent with the goals of your case. When attempting to sway the opinion of a jury, your approach can be as nuanced as possible with a richer source of information available for you to employ.
Whatever the type of case, the potential defendant or the jurisdiction you file within, eDiscovery will be a vehicle used by both sides to shine light on the truth. Before investing valuable time and money, more plaintiff’s attorneys are working earlier to gain the facts that their clients possess.