Identify the parties and agreements
List the businesses and individuals involved, their roles and the agreements that govern the relationship. Include signed contracts, amendments, guarantees and ownership documents. Note whether anyone is acting in more than one capacity, such as an owner who also guaranteed a company obligation.
Build a short chronology
Set out the main events in date order. Distinguish what the documents show from what someone recalls or suspects. Identify the important missing facts rather than trying to fill gaps with assumptions.
Preserve relevant records
Keep the relevant emails, messages, financial records and original documents. Discuss preservation needs with counsel, including whether routine deletion settings could affect important information. Do not assume that forwarding a document to an attorney makes the underlying document privileged.
Define the business objective
The objective may be payment, continued performance, protection of assets, an ownership exit or a defensible response to a claim. Explain what is time sensitive and what outcomes would be workable. That information helps counsel evaluate litigation, negotiation and other available steps.
Consider the practical constraints
Available evidence, the ability to collect, ongoing customer or supplier relationships and the burden of discovery can affect the value of a case. These concerns should be discussed alongside the legal theories.
For the initial inquiry
- Provide the names of the parties for a conflict check.
- Give a short, neutral description of the dispute.
- Identify any filed lawsuit, demand, hearing or response date.
- Wait to send a detailed record until the firm arranges an appropriate method.
Matthew Bialick, James Magnuson and Kyle Bear handle commercial litigation at MJB Law. Matters involving a distressed business may also raise bankruptcy litigation issues.