I have five points to make today. While these points are fundamental, they are worth repeating because they will make case preparation much more effective.
First, sometimes the best preparation is to avoid the dispute or settle it in the early stages. As counsel starting a case, one often thinks first about what "the winning argument" might be, or how to focus the closing submissions. As appropriate as this is, there is another role for counsel that should not be overlooked: assessing whether the case should be litigated further. It may well be that a case should be settled in whole or in part--perhaps because it is flawed legally; perhaps because of the ramifications of an award for the respondent, due to the systemic implications of the case; or perhaps due to the time, cost, and difficulty of litigating it. There can be any number of reasons supporting early resolution of a dispute. We also know that there is a window of opportunity to assess and perhaps settle a matter before all parties become too busy with preparation and too entrenched in adversarial positions. As a result, a conscious effort should be made as part of case preparation to discuss with clients the potential for a satisfactory resolution that does not involve litigation.
Second, early preparation is the key to success. Once a case begins, it is like the proverbial train leaving the station, and if counsel is behind at that point, it is very difficult to catch up. A number of efforts must be put into motion at this stage, all on parallel tracks, and so logistics become critical. Lead counsel should have an overall calendar for the process, with each step clearly set out, and then must work backwards from the date of the final award. Among the items that must be addressed early on this checklist are:
* Budget: Develop a budget with realistic estimates of how much the case will cost to litigate, and confirm the source of funds. Clients must know what the case will cost and should be prepared for this expense. A case that collapses midstream for want of funding is a waste of time and money for everyone.
* Put the client team together: Who has the factual expertise in the client group? Who (if anyone) has legal expertise in the client group? Who is the contact person for the legal team? Once these people have been identified, they must be pulled together, and a mechanism needs to be put in place to allow for briefing clients, getting instructions, formulating and adapting the case strategy, and so on.
* Communication plan: Depending on the profile of the case, one might also consider how information will be provided to the public and the media. In a high-profile case, a communication plan will prove very useful to ensure that any comment on the case is appropriate, useful, and does not aggravate the tribunal.
* Devise the legal strategy: What is the theory of the case, and how will the case be prosecuted or defended?
* Task the legal team, and ensure that everyone knows his or her role.
* Harness the facts: In particular, this means identifying witnesses and documents. Collecting documents can be especially difficult in a government context or where the claimant is a large and diverse entity and a number of officials may have had a role in the fact situation. If there are numerous documents, it is worth considering how they will be stored and accessed. In large cases, document management software with search capacity is critical, especially if there is a disclosure phase in the proceedings. …