January derives its name from Janus, a two-faced god from ancient Rome, who looks to both the future and the past. Having long retired from his days as the ruler of Latium, Janus today demonstrates some important lessons about the ins and outs of current-day litigation as it may impact you or your business in 2012.
Janus looks back to the past, and every lawsuit will inevitably “look back” at the facts of who, what, where, when and why? One legal adage says, “The facts win lawsuits.” So an important step in dealing with (or avoiding) litigation is totally within your control. It starts with you.
Take Care of Your Facts Now
We have become the Keyboard Society. Text, type, text, tweet, tweet, type and text. We message as much as the spoken word. Like Janus, the prominence of electronic communications has two faces. On the one hand, it provides tremendous opportunity to document, document, document. Think back to your most important three business transactions in the last 30 days. Do you have the major elements of the sale, the deal, the loss or breach, the new hiring in writing?
Yesterday’s facts will become evidence in the future. Without proof, a legal claim is severely compromised. Evidence matters.
On the other hand, emails can be forever. Thus, it is equally important to carefully utilize your computer, or a company computer (tablet, iPhone, etc.), in a business-like and judicious manner. Easier said than done, of course. However, litigation will increasingly require all parties to open their computer systems and electronic storage devices to the opposing side in the information-gathering procedures known as “discovery.” Make good decisions about what appears in writing. Someday, it may become Exhibit No. 1 in the courtroom.
Lawyers also have the task of knowing the law applied to any lawsuit. This also requires a “Janus-inspired” analysis of past legal decisions and an assessment of legal outcomes in the future.
Every legal claim will involve the law, whether a statute, ordinance, government regulation or case law. Once in the courtroom, the law becomes all-important. Lawyers must carefully examine legal precedent from past cases. History repeats itself and so do lawsuits, again and again. While law is constant in many ways, it is also constantly in a state of change.
Spend Some Time With the Law
Reserve time with your lawyers to review the law. Spare yourself a multi-chapter treatise on contract law from the 18th century to modern day, yet see for yourself what it means to have a decision from the appellate courts having immediate sway in the county where your case will be tried, in Missouri either the Eighth Circuit Court of Appeals or the Missouri Supreme Court. Insist on having a clear sense of what specific law applies to a specific lawsuit. It is your right to be informed on recent case law developments, along with new laws passed by the U.S. Congress and Missouri Legislature in Jefferson City, Mo. Effective litigators will walk into the courtroom with a thorough knowledge of the law — ready to hand the trial judge cases to support a claim or defense.
The “look back” at case law is necessary because a set of facts at issue in a 2012 lawsuit may have been similar to a case decided in 1982. Our judicial system is largely premised on precedent. The basic legal elements of a contract — (1) offer, (2) acceptance and (3) consideration — have existed for years and years. Indeed, the legal past plays a major function in the resolution of legal claims in the future. The stability of many legal doctrines often contrasts with the fluid, emotional attachment to the facts. That’s why it is important to look at litigation in more ways than one.
Litigation ebbs and flows between the past and future. The most successful litigants respect the power of each direction and bring a Janus-like approach toward reaching a valuable resolution.