Maximizing Efficiency in Dispute Resolution: Help Tell Your Story
By David Mckenzie and Renata Germann
Resolving a dispute – whether through litigation in court, alternate dispute resolution or negotiated settlement – can seem very much like storytelling. This is because your version of events will be presented as the foundation for the legal argument.
Organizing and preparing your story for presentation in any dispute resolution forum is very important, though it may involve a lot of time and effort. Lawyers understand this and often spend significant time reconstructing what happened in order to best present it in the framework of a legal argument.
Unfortunately, lawyers are expensive, so if you are dealing with a lawyer, you will likely want to do so in the most efficient and cost-effective way possible. Clients who can efficiently work with their lawyers and bring an organized history of events tend to pay less in legal fees than those who provide piecemeal or disorganized information.
Below are some general tips that we have found to increase efficiencies in cases.
Prepare a Written Summary
The traditional but often very inefficient way to provide information to lawyers is to meet and simply recount the problem and what happened. This isn’t to say that meetings are not effective; however, early on the information provided can be jumbled and notes will inevitably fail to record everything.
It can be a more efficient starting point for a client to type up a detailed chronology describing the history of events. This written chronology can then be jointly worked on with the lawyer so that it captures the history and details of the events relevant to the legal problem. It will also allow the lawyer to efficiently guide the collection and summarization of important information.
We find that clients often just want to tell the “key points” and then “get advice”. Sometimes that works and is all that is needed. However, that approach assumes the client is aware of all legally relevant information, which is often not the case. Legal advice is typically only as reliable and complete as the information it is based on. Efficiently communicating details of the dispute by way of a detailed chronology allows the lawyer to quickly identify the legally relevant information and provide reliable advice.
Cast of Characters
We have found, particularly in large complex disputes, a summary of the key “players” increases the efficiency of document review. Your lawyer did not live through the project. While you might know who everyone was and their role during a project and can remember who replaced whom, your lawyer doesn’t start out with that knowledge when reviewing documents.
Collect and Organize Your Project Documents
Documentary evidence is a central feature of most civil cases, including nearly every construction case, and the persons presenting the case must be familiar with relevant documents. Providing your lawyer with a well-organized document collection at the outset can greatly increase the efficiency of document review and reduce legal fees. We recommend that you keep electronic records, save emails and text messages, and organize electronic documents into subfolders with logical relevant names before providing them to your lawyer.
Lawyers are not accountants, yet you would be surprised how much of our time is spent trying to understand how claim amounts are arrived at. What your claim is made up of is an integral part of your story and one a decision-maker has to believe. A spreadsheet showing all invoices, change orders, directives, payments and disputed items, for example, can be an invaluable tool. It is almost always cheaper for you to prepare such a spreadsheet than to pay your lawyer to do so.
In summary, if you can reduce the time your lawyer needs to spend uncovering and understanding the underlying facts of your claim, it will be time well spent by you.
David Mckenzie and Renata Germann are lawyers with Jenkins Marzban Logan LLP and practise in the area of construction law and commercial litigation.
This article first appeared in the Spring 2016 issue of SICA's Construction Review Magazine. To read the entire magazine click here.
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