Disclosure decides it more often than argument
Most commercial disputes turn on what people wrote to each other at the time, not on what they remember having intended.
Filed under
Commercial Litigation
Published
Reading time
8 min
Written by
Callum Reyes
Written by
Callum Reyes
Called 2003
Every note is written by the partner who would run the matter, not by a marketing team.
Put a matter to us
Put a matter to us
Put a matter to us
In short
Preserve everything, including what you would rather not, and tell us early.
Bound volumes — the reported end of a very small number of disputes
Bound volumes — the reported end of a very small number of disputes
Commercial disputes are decided on what people wrote at the time. Recollection is unreliable, witnesses are honest and wrong in roughly equal measure, and the contemporaneous record does not change its mind under cross-examination.
This has a practical consequence. The case you can actually run is rarely the case described in the first meeting; it is the case the documents will support. We therefore get to disclosure early and read it ourselves rather than delegating it to a review platform and a summary.
It also affects how we advise on settlement. An offer made before disclosure is made in partial ignorance by both sides. An offer made after it is usually the realistic one, which is why so many matters resolve in that window.
The corollary for clients is simple: preserve everything, including the messages you would rather not, and tell us about them early. We can deal with an unhelpful document. We cannot deal with a surprise.
Why documents win
Witnesses are honest and wrong in roughly equal measure, and memory reconstructs itself around the outcome. The contemporaneous record does not, which is why judges reach for it and why the disclosure exercise usually determines the shape of the case.
How we run disclosure
We read it ourselves rather than delegating it to a platform and a summary. Review technology narrows the pile; it does not tell you which three documents matter, and those three are what the trial is about.
The effect on settlement
An offer made before disclosure is made in partial ignorance by both parties. An offer made after it is usually the realistic one, which is why so many commercial matters resolve in that window and why we plan the negotiation around it.
What clients should do
Preserve everything, including the messages you would rather nobody read, and tell us about them early. We can deal with an unhelpful document. We cannot deal with a surprise in cross-examination.
Recollection is unreliable. The contemporaneous record does not change its mind under cross-examination.
This note is general information, not advice on your matter. The facts change the answer, which is what the first conversation is for.
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Disclosure decides it more often than argument
Most commercial disputes turn on what people wrote to each other at the time, not on what they remember having intended.
Filed under
Commercial Litigation
Published
Reading time
8 min
Written by
Callum Reyes
Written by
Callum Reyes
Called 2003
Every note is written by the partner who would run the matter, not by a marketing team.
Put a matter to us
Put a matter to us
Put a matter to us
In short
Preserve everything, including what you would rather not, and tell us early.
Bound volumes — the reported end of a very small number of disputes
Bound volumes — the reported end of a very small number of disputes
Commercial disputes are decided on what people wrote at the time. Recollection is unreliable, witnesses are honest and wrong in roughly equal measure, and the contemporaneous record does not change its mind under cross-examination.
This has a practical consequence. The case you can actually run is rarely the case described in the first meeting; it is the case the documents will support. We therefore get to disclosure early and read it ourselves rather than delegating it to a review platform and a summary.
It also affects how we advise on settlement. An offer made before disclosure is made in partial ignorance by both sides. An offer made after it is usually the realistic one, which is why so many matters resolve in that window.
The corollary for clients is simple: preserve everything, including the messages you would rather not, and tell us about them early. We can deal with an unhelpful document. We cannot deal with a surprise.
Why documents win
Witnesses are honest and wrong in roughly equal measure, and memory reconstructs itself around the outcome. The contemporaneous record does not, which is why judges reach for it and why the disclosure exercise usually determines the shape of the case.
How we run disclosure
We read it ourselves rather than delegating it to a platform and a summary. Review technology narrows the pile; it does not tell you which three documents matter, and those three are what the trial is about.
The effect on settlement
An offer made before disclosure is made in partial ignorance by both parties. An offer made after it is usually the realistic one, which is why so many commercial matters resolve in that window and why we plan the negotiation around it.
What clients should do
Preserve everything, including the messages you would rather nobody read, and tell us about them early. We can deal with an unhelpful document. We cannot deal with a surprise in cross-examination.
Recollection is unreliable. The contemporaneous record does not change its mind under cross-examination.
This note is general information, not advice on your matter. The facts change the answer, which is what the first conversation is for.
More from the journal
Civil Fraud
6 min
What a freezing order actually costs
The application is the cheap part. The cross-undertaking in damages is what should decide whether you bring it.
Read the note
Arbitration
7 min
An award you cannot enforce
Enforcement is not the last stage of an arbitration. It is the first question, and it should be answered before the notice is served.
Read the note
Practice
4 min
What we do in the first meeting
Thirty minutes, no charge, and a partner. What we are actually listening for, and why we sometimes say don’t.
Read the note
Disclosure decides it more often than argument
Most commercial disputes turn on what people wrote to each other at the time, not on what they remember having intended.
Filed under
Commercial Litigation
Published
Reading time
8 min
Written by
Callum Reyes
Written by
Callum Reyes
Called 2003
Every note is written by the partner who would run the matter, not by a marketing team.
Put a matter to us
Put a matter to us
Put a matter to us
In short
Preserve everything, including what you would rather not, and tell us early.
Bound volumes — the reported end of a very small number of disputes
Bound volumes — the reported end of a very small number of disputes
Commercial disputes are decided on what people wrote at the time. Recollection is unreliable, witnesses are honest and wrong in roughly equal measure, and the contemporaneous record does not change its mind under cross-examination.
This has a practical consequence. The case you can actually run is rarely the case described in the first meeting; it is the case the documents will support. We therefore get to disclosure early and read it ourselves rather than delegating it to a review platform and a summary.
It also affects how we advise on settlement. An offer made before disclosure is made in partial ignorance by both sides. An offer made after it is usually the realistic one, which is why so many matters resolve in that window.
The corollary for clients is simple: preserve everything, including the messages you would rather not, and tell us about them early. We can deal with an unhelpful document. We cannot deal with a surprise.
Why documents win
Witnesses are honest and wrong in roughly equal measure, and memory reconstructs itself around the outcome. The contemporaneous record does not, which is why judges reach for it and why the disclosure exercise usually determines the shape of the case.
How we run disclosure
We read it ourselves rather than delegating it to a platform and a summary. Review technology narrows the pile; it does not tell you which three documents matter, and those three are what the trial is about.
The effect on settlement
An offer made before disclosure is made in partial ignorance by both parties. An offer made after it is usually the realistic one, which is why so many commercial matters resolve in that window and why we plan the negotiation around it.
What clients should do
Preserve everything, including the messages you would rather nobody read, and tell us about them early. We can deal with an unhelpful document. We cannot deal with a surprise in cross-examination.
Recollection is unreliable. The contemporaneous record does not change its mind under cross-examination.
This note is general information, not advice on your matter. The facts change the answer, which is what the first conversation is for.
More from the journal
Civil Fraud
6 min
What a freezing order actually costs
The application is the cheap part. The cross-undertaking in damages is what should decide whether you bring it.
Read the note
Arbitration
7 min
An award you cannot enforce
Enforcement is not the last stage of an arbitration. It is the first question, and it should be answered before the notice is served.
Read the note
Practice
4 min
What we do in the first meeting
Thirty minutes, no charge, and a partner. What we are actually listening for, and why we sometimes say don’t.
Read the note