The Many Faces of Fredo, or, Due Diligence in the Real World – Part Four: Home is Where the Dirt Is

 

I’m a little worried about this Sollazzo fellow.  I want you to find out what he’s got under his fingernails.

–Don Corleone to Luca Brasi, Godfather I

 

We return to continue your investigation on potential business partner Frederico “Fredo” Corleone. Depending on the scope decisions made at the beginning of the investigation, you learned that he is either a stand-up guy married to a successful actress, or that he has a propensity to act out violent scenes, particularly when his substance-abusing wife is involved.  Recall, the difference in this was essentially two answers – whether to conduct law enforcement searches, and whether to conduct the same set of investigation methods on his spouse.

There are certainly clients who would look at all this and not be concerned. After all, people have their business lives and people have their private lives, and no one is perfect.  This deal is about money, and your client wants to know one thing – can I trust Fredo with my money?

You know already that Fredo has no history – in his name – of contract suits (in Nevada), that he pays his taxes, that he has never declared bankruptcy, and that he owns a house. Everything you know about Fredo’s financials seems like he has it under control, so you feel like diligence is done.  You might be very wrong.

No matter what you have been told in the past, understand this: unless you have the full and honest cooperation of the subject, such as in the context of making financial disclosures, or unless you are already in the courts and have a permissible discovery tool in play, the (legal and private) accessibility of specific personal financial information is extremely narrow.

In situations where you may prefer to operate your diligence check under the radar, the real picture of an individual’s financial situation has to be made through several separate sources of information. There is one in particular that seems like it is easy to breeze right by in a scope discussion, particularly with a constrictive budget – property records.

In my experience, property records are one of the most overlooked gold mines in the investigation of an individual. (In fact, I love them so much, we will be discussing property records again next week, and if you stick with me on this, I think you will see why.)

So returning to your hasty initial call to your investigator, she is inevitably going to ask you:

Do you want expanded properties background?

Most individuals will have a very basic set of documents on file with their home county – a marriage record, maybe a divorce judgment, a first mortgage, a deed of trust or similar with their mortgage company, and possibly (for the lucky ones!) a deed of release when they have paid off their residence.

A question I have received time and time again is “Why does property research take so much more time and money?”

There are several reasons for this, the primary one being that unfortunately, in the race to digitize county records, property records may be the last on the list for many local governments, and even when they make it to the “new online system,” they are sometimes limited to only more recent years.

Messy_storage_room_with_boxesAfter that issue has been identified and addressed, depending on what county or counties you are dealing with, you will have to decide how far back you want to look.  In scenarios where the records have been digitized for, say, the last ten years, it may make sense to start there, and indeed, many investigations do just that.  In scenarios where your client has a significant amount of money on the line, however, it may make sense to have your investigator head into the county courthouse basement and go back to the beginning.

The second reason property records research can be so time-consuming and expensive is that you are not typically dealing with “most individuals” when looking at potential partners in heavily-funded transactions.  One thing to remember when thinking about a diligence investigation, always, no matter how charming or transparent your subject seems to be: Your clients are likely sophisticated operators, and therefore likely seek out fellow sophisticated operators with which to conduct business.  It should come as no surprise then that these individuals are and have been operating at that level for some time prior to your client having drinks at Fredo’s club – after all, that was probably the initial attraction.  While this can make someone an ideal business partner, it can also make them a tough nut to crack in an investigation.

There are myriad tricks and loopholes that individuals use to transfer, finance, and even willfully conceal both real and personal property. Conversely, some people use seemingly transparent property transactions to conceal their money or even their connections. As boring as it all sounds, an individual’s real and personal property may be the first rock in the avalanche revealing their true background, current situation, and attitude toward money.

So at the end of the day, yes, depending on your subject and where he or she lives, researching property can add a fair chunk of change to an investigation.  That said, through a diligent work-up of a person’s local recorder of deeds and local assessor, you may learn some secrets that are definitely worth knowing.  Next week, we will take a closer look into what your money can get you by venturing into Fredo’s properties (or in real life, whether your investigator may have an exciting trip to a county government basement in her future.)

The Many Faces of Fredo, or, Due Diligence in the Real World – Part Three: The Cost of Blood

800px-GF1_15

 

I don’t like violence, Tom. I’m a businessman; blood is a big expense.

–Virgil Sollazzo, Godfather I

Welcome back. This week you continue your careful path to crafting a diligence investigation on Frederico “Fredo” Corleone, your client’s new potential business partner.  Last week, you agreed to a “basic background, nothing fancy, online sources only.”

You learned that Fredo is married, owns a nightclub, owns a house, has no arrests in Nevada, has no history of being personally named in employment litigation, has never had a tax lien or declared bankruptcy, and has a modest social networking presence dedicated mostly to his glamorous lifestyle and his pets.  You (begrudgingly) added his spouse to the investigation, and learned she is a famous actress with famous friends, has won an Academy Award, and you are secretly wondering if you will ever get a photograph with her for your Twitter page.

So far, so good – at this point, are you likely to give Fredo a passing grade on diligence?

Prepare yourself, though, because your investigator will inevitably ask you:

Are you sure you want us to stick only to online and database sources? We may not get everything.  And, are you sure you want this only on Fredo, not on Deana?

Will you authorize your investigator to conduct inquiries with local law enforcement agencies, or will you specifically say to stay with online and database research to keep costs down?

As a general matter, conducting local law enforcement searches is a typical first step when going outside of cyberspace and into the real world.  A modern “online investigation” will probably involve searching available court dockets and requesting a statewide criminal history check where one is available to the public.  It seems thorough when you are discussing it, but let’s stop and think about it for a minute.

Although it varies by agency, law enforcement searches usually involve police or sheriff department reports, incident logs, and sometimes emergency call logs.  While your online investigation would have probably revealed to you whether your investigation subject had criminal charges(with a few exceptions, for another time) , searching public court dockets will not tell you whether they have been arrested and never charged.  Neither the public court dockets nor a statewide criminal history check will tell you whether your subject has been the victim of a crime.  Can you think of any scenarios with someone you know where the court record is clean but there is a whole other story in the files of the local police department?

In this case, a local law enforcement search may reveal that Deanna has a substance abuse problem, and previously engaged in some activities (I will leave the details to your imagination) that prompted Fredo to shoot a car to death and break another man’s cheekbones.  No charges were ever brought related to any of this – someone always came to collect Deana and take her home with a warning to stop driving with a vodka gimlet in her hand, and no one at the scene of the tragic car death was willing to press charges against Fredo.  The court records are clean, but the history is not.

So now you know not only that Fredo has a temper – which could easily lead to your client facing litigation – and that he uses guns – which may be a whole other consideration for some clients – but that his spouse – who has something of a public presence and probably interacts with the media from time to time – drinks too much and may not always know what she is saying.  This may or may not be a problem for your client, depending on whether Fredo will ever have information your client would prefer to keep out of the public eye.porsche

You have also learned that it may also be just a matter of time before Deana gets behind the wheel, takes out another driver, and brings on not only the negative publicity, but a massive lawsuit with all its attendant financial discovery.  (Whether that lawsuit will reveal Deana to be the most silent of silent partners in your client’s business is a topic we will get to next week.)

Not to mention, this now causes you to ask why Fredo never had any criminal charges related to a fairly serious assault, and further, whether Fredo and Deana will soon be divorcing.  Will your client care if Fredo has to start disclosing specific financials in a dissolution case?  Remember all those photos where Deana was “helping Fredo close the partnership deal” at the club?

Now, Fredo’s history of violence aside, whether or not you care that Deana has a substance abuse problem is really a case-by-case decision.  But, whether you include Deana in this law enforcement search can have other consequences to the outcome of this investigation.  Here’s why:

Records can be elusive, particularly in the context of unfiled criminal acts. An example here would be if the officer who responded to the 911 call about the man with the broken cheekbones – let’s call him Mr. Cheekbones – only took down Deanna’s name and no one wanted to go on record and name Fredo as the assailant. In cases where the assailant has a domestic connection to a witness or a victim, or in cases where the assailant is a generally scary person in any one of several possible capacities, this is more common than you may want it to be.

What if by the time the officers arrived, Fredo was gone and only Mr. Cheekbones and Deana were still around?  Maybe Fredo is in the report as only “Vic2’s spouse.”  Since Deana was not beaten, maybe she is called a witness in this report, rather than a victim – this all matters when you are asking a law enforcement records clerk to pull reports from the file room.

In some cases, the jurisdiction may redact Deana’s name altogether as a domestic violence victim and only use her initials and her home address as the secondary identifier on a report catalogued under the primary victim’s name.  In other words, if you do not have the budget to start requesting records under addresses, you will never know this happened.  This is the practice in many jurisdictions and a law enforcement records clerk may or may not pull that report – really, even though it is also Fredo’s address – depending on how your investigator structures the requests.

In any of the above scenarios, Fredo comes out of this incident still looking clean as a whistle, unless the expanded scope including Deana is also authorized.  It may not always make sense, depending on what you are after – but when you are asked this question in the future, think back to this man with the broken cheekbones, and decide whether any of this would be worth knowing.

Next week, we will look at using one of the most apparently boring possible research tools currently in existence to reveal whether Fredo is a tax cheat, has a mistress, or is thinking of going to the mattresses with previously-undisclosed business partners.

 

******************************************************************

Note: If you do not remember Fredo shooting up cars and beating another man over Deana, it may be because it was never in the movies.  This was part of Mark Winegardner’s novel, The Godfather Returns.  In that novel, Fredo also beat a man to death in San Francisco – the man was his lover and made the mistake of recognizing Fredo from the newspapers. Fredo was freed when Tom Hagan worked out a self-defense claim – several other facts that may or may not be revealed when electing to conduct research only in Fredo’s home state of Nevada. 

Fans of the movies will also no doubt recognize the advantages to knowing that you may be dealing with the soft-spoken family attorney, Tom Hagan, if this deal ever goes south. 

 

Images from odditycentral.com and imfdb.org

The Many Faces of Fredo, Or, Due Diligence When the Godfather Comes Knocking – Part Two: Dangerous Women

 crazy_train_bypass

In Sicily, women are more dangerous than shotguns.

–Calo, Godfather I

Last week, we learned that your client is interested in going into business with an exciting Las Vegas club owner and fantastic host named Frederico Corleone. Now, you have no choice but to start deciding where to take this diligence investigation, how far to go, and how much to spend.

I just need basic background, nothing fancy, stick to what you can get online and in your databases.

The lower budget version of an investigation will tell you the Frederico “Fredo” Corleone is married, owns a nightclub, owns a house, has no arrests in Nevada, has no history of being personally named in employment litigation, has never had a tax lien or declared bankruptcy, and has a modest social networking presence dedicated mostly to his glamorous lifestyle and his pets. (Yes, he is originally from New York, but he has lived in Nevada for years, so yes, for now you want to keep the scope to Nevada only because this case budget is blowing up.)

This is all consistent with the charming person your client was entertained by at Fredo’s club, and since your client has told you “no one has a single bad word to say about him,” seems like you have a picture of who he is and your client has some things to put into the file.  Diligence performed.

But is that really the point?  Are you simply padding a file or are you really interested in the outcome of this partnership?

Do you know anyone in this world who is truly an island unto himself?

Should we narrow this to Mr. Corleone or would you also like us to investigate his spouse? This adds to our time budget.

The next step up in this budget is likely Fredo’s spouse. Through a basic online and database investigation, you learn Deana Dunn-Corleone is an actress, she is close friends withFredo_and_Deanna famous singer Johnny Fontane, and she even won an Academy Award.  This seems like a plus mark in the pro-Fredo column, because who does not like beautiful celebrities?  Now your client can say they are in business with a famous actress, and may even be able to post some photos with her!

This may all be true. However, let’s take a moment to think this over.  What is your client’s exposure tolerance on this deal?

Would it matter to anyone that Deana probably has interactions with the media?  That she sometimes has paparazzi following her?  Perhaps to a meeting place where your client may also be?

Is that a positive or a negative?

If your client likes the idea of free publicity, or does not really care either way, you might be finished here. However, this makes the assumption that Deana will be a benefit – that she will always behave herself, and that most importantly she can be trusted with potentially sensitive business information she comes by simply by virtue of being married to your client’s prospective business partner.

Next week we are going to look at how you figure out whether Deana is a dangerous woman, and without giving too much away, how you may learn some surprising new information about your new friend Fredo.

 

**********************************************

Image from http://godfather.wikia.com/

The Many Faces of Fredo, or, Due Diligence When the Godfather Comes Knocking – Part One: The Club Owner

Anonymous Person

 

Scope is a dirty word. It is often the most critical set of decisions you will make with regard to the job you are asking your investigator to perform, and as you know, it is a primary factor in the final bill.

Unfortunately, there are two sets of realities at play. First, life is not like the movies, where the investigation proceeds with no discussion of budget and clients are only too happy to provide carte blanche as long as the truth comes out and the boy saves the girl and the innocent are freed and the evildoers are exposed.  The second reality is that litigators and investigators sometimes use the same words, but behind those words are completely separate meanings.

Making decisions on how far to take an investigation – particularly in the context of budgets – is not the most pleasant task, but this series is designed to flesh out the ramifications of where and how you determine scope.

So, let’s say your client is trying to expand its operations in the Las Vegas area, needs space, and needs local businesspeople on the ground. Your client phones, has a name, says “he seems like a good enough guy, we had drinks at his club, his wife is super hot too,” and then says “we need background on him, you know, for the file.  And stuff.”

You call an investigator; you give the name you wrote down, and say “we need background on this person.” You cringe, because you know the next thing you are going to hear is “What kind of scope are we talking about”, followed by a litany of annoying questions that you may not have thought about and do not really care about except you want to know what it will cost and you want to mark this task off your list and get back to something that is more interesting.  (We get it, by the way.)

Over the next few weeks, we are going to be looking into how to craft a due diligence investigation on this club owner, how because of the sometime language barrier between investigators and attorneys you could find yourself inadvertently diverted from important information, and ultimately, how to get to the bottom of who this person really is.

By the way, the name on your list is Frederico Corleone.

Fredo_Corleone

 

 

 

 

Image from http://godfather.wikia.com/

The Lost Painting- how a fresh set of eyes made all the difference

NGI 14702

NGI 14702

 

 

It was meet that we should make merry, and be glad: for this thy brother was dead, and is alive again; and was lost, and is found

Luke 15:32

It  hung in abject isolation in a small monastery in Ireland. Seen  every day, but never really seen. Unnoticed and unappreciated by every passerby hurrying to and fro. Too busy to notice. Too busy to care. Too busy to question. Too busy to really look. Too busy. Too busy.

And, there in the dining room of the Society of Jesus in Dublin, hung one of the most remarkable paintings ever produced by Michelangelo Merisi known to us as Caravaggio. By 1990, the masterpiece had been there for over fifty years, as smoke, dirt, and  varnish layered onto the once pristine surface. No one cared. No one noticed. What was there every day to be discovered, never was.

Until a fresh set of eyes took a closer look.

Those eyes did not belong to a renowned and well connected member of the art community, but instead belonged to a conservator in Ireland, and two young graduate students at the University of Rome. Neither knew of the others’ investigation, but they converged to identify and document the painting and the provenance.

Sergio Benedetti was toiling away at the National Gallery of Ireland. He had worked there for thirteen years, but admittedly had grown disenchanted with his position, and felt that his professional career was passing him by. There had been no real challenges or opportunities to offer an escape from what was becoming a mundane career. But that changed on the morning when he accompanied the gallery’s assistant director- Brian Kennedy- to the Jesuit residence to look at some paintings that the priests wanted to have cleaned.

Benedetti examined several paintings, before turning his focus to the large painting that had hung in the dining room for so many years. “It was dark, the entire surface obscured by a film of dust, grease, and soot. The varnish had turned a yellowish brown, giving the flesh tones in the faces and hands a tobacco-like hue. The robe worn by Christ had turned the color of dead leaves, although Benedetti’s eye told him that beneath the dirt and varnish, it was probably a coral red. He could see that the canvas had gone a little slack in the frame. He judged that it had not been cleaned or relined in more than a century.” As they looked closer, the rector “thought it to be the best work in the house,” Kennedy described it  as “a good second-division work,” but the fresh eyes of Benedetti looked beyond the cosmetics, as he whispered to Kennedy, “I think it might be by Caravaggio.” (from The Lost Painting)

At that same time, Francesca Cappelletti and Laura Testa were about to begin a journey that would lead them to dusty archives, and protracted  pleadings with and interviews of Annamarie Antici-Mattei, the matriarch of the Mattei family, and protector of the family’s historical records. Their dogged determination  eventually led them  to the documents that would provide the undisputed proof by making the connections linking the circuitous route taken by the painting from the original commission in 1602, to the dining room of the Society of Jesus.

It took imagination, deep work, dedication and expertise among other things to find what had been lost. For a low-level conservator such as Benedetti to closely examine a grime covered painting hanging in an out-of the way monastary, and even to remotely have an inkling that this could be the long-lost Caravaggio masterpiece was beyond preposterous. And, to think that two young graduate students could piece together the painting’s history leading it to that dining room wall was beyond comprehension. But, they did it.

All the efforts of these new eyes led to the discovery of The Taking of Christ which is now on display at the National Gallery of Ireland, Dublin.

 

——————————

It’s easy to develop tunnel vision in these days of complex litigation, tight budgets, even tighter deadlines, intrenched ways of doing things, and thoughts about how it could be done differently. Fortunately for all of us, three people in the art world also questioned years of doing (or not doing) things in a certain way, and decided to stop, look, question, challenge and dig deep to resurrect what had been lost, and now is found.

And, a fresh set of eyes made all the difference.

 

 

 

 

 

You Can FOIA a FOIA (Seriously) – And You Should Probably Care (Seriously)

With words we begin to leave traces behind us like breadcrumbs: memories in symbols for others to follow.

Ants deploy their pheromones, trails of chemical information; Theseus unwound Ariadne’s thread.

Now, people leave paper trails.
— James Gleick

From alien hunters to government conspiracists to seasoned litigators, the Freedom of Information Act Request has been inspiring abject terror and unrelenting boredom since 1967.  There are forms for forms that refer to other forms.  There are government clerks who have vacation planned.  There are rejection letters upon rejection letters and then finally, after the whole tragic dance has played out and the verbiage has been finessed to the point you have forgotten what you were really after in the first place, there is anywhere from one page by email to a cubicle full of banker’s boxes of results.  In a world of paperwork and fillable online fields and facsimile confirmations, the Freedom of Information Act remains the undisputed King.

In the litigator’s world, it is tempting to view FOIA simply as a routine tool for discovery purposes, for witness investigations, and for site analyses.  Indeed, that is the meat of it and once someone in your office masters The FOIA Problem, that person is likely (and rightfully) elevated to the status of “never comment on personal internet usage time.”

However, the routine tool we all know and hate love has an often overlooked eccentricity – the ability to FOIA the FOIA.

head exploding1What?

Yes.  Anyone in the world who wants to do so may draft a Freedom of Information Act Request for a list or log of others who have drafted a Freedom of Information Act Request, for essentially anything you can think of that would spur a Freedom of Information Act Request in the first place.  This also applies to any similar state open records law.  A request for a log is (of course) subject to any of the nine standard FOIA exemptions, but often these requests will go through relatively unfettered, although the typical thought is to limit the request by certain dates to expedite the process.(1)

For an example of a typical FOIA log that was produced in response to a FOIA request, here is an excerpt from the extensive request log of the Clinton Presidential Library for requests received in March, 2013:

clinton foia

It is unclear from the log whether Mr. Cameron cares that the world knows he is researching aliens and the possibility of a conspiracy between the Clinton Administration, Billy Graham, and Steven Spielberg and/or Kate Capshaw, and I admittedly did not contact him for a comment.  However, the point is that someone, somewhere, for reasons we may never understand, wanted to know who was requesting documents from the Clinton Presidential Library in March, 2013, and they received this tidy PDF document listing.(2)  The far left column is the request tracking number, so in theory, we could very easily submit our own FOIA request to receive the same documents sent to Mr. Cameron regarding the alleged Clinton/Graham/Spielberg secret meetings.

As amusing as some of the logs can be, this little breadcrumb request device is important to outside litigators and in-house counsel for two main reasons:

One, who has been requesting information about your client?  About your client’s jobsite/product/legislative history/Federal Drug Administration correspondence/non-citizen employee filings/insert anything here?

When did this begin?  What information has the requester obtained thus far?

Journalists, opposing counsels, activist groups, non-profits, embittered former employees, weird online bloggers you have never heard of – FOIA does not discriminate.

This could signal a nasty surprise is in store for your client, but by watching the breadcrumbs left by others, you may gain a significant advantage in your ability to get out in front of whatever is coming.

Two, what breadcrumbs have you left behind in your own FOIA request history?   While this may not seem relevant offhand, since we tend to think of the FOIA as anything “public record” – therefore who cares what is kept in the log – let us go to a hypothetical.

You have a client who is being sued for the plaintiff’s occupational exposure to a product, and your client was one of many manufacturers.  You do not think your client was distributing in that area of the country anyway, and maybe there is prior testimony to that effect in previous cases.  Opposing counsel is not prepared to voluntarily dismiss you (or anyone else) at this juncture, and maybe never will.  You get the idea to submit a FOIA request to state and federal agencies that may have records related to the exposure site, looking for support for your alternate causation defense.  Someone drafts it, you sign it, and maybe no one thinks about why the drafter of your request extended the years out to plus or minus five, just to be safe and make sure you get everything.  It is a common practice.

Your records come back, and great news, you have a dedicated associate to sift through them, and even better news, there is loads of evidence of other exposures.  You have your neatly culled set of important documents.  You leverage them at just the right time.  Your client is now completely uninteresting to the plaintiff, and after you get a dismissal, you cruise into your weekend confident that all is well.

The following year, you get another case.  This time, the plaintiff worked at the same site two years after the first one.  What you may not yet know is that your associate from last summer failed to mention the records demonstrating a first documented purchase of your client’s product two years after the original plaintiff stopped working at the site.  Maybe it was through a distributor that even your client was unaware of before now, or maybe your associate stopped reading documents after the last date the plaintiff worked and then your office manager sent all the (begin air-quotes) surplus documents (end air-quotes) to the file in the basement to be rid of them before the office holiday buffet.

snakeBite_1000Now, here is your situation:  the new plaintiff worked during the distribution period of your client’s product, but you are filing away on the idea that the distribution never occurred.  You are leveraging your non-exposure argument (and your credibility) every chance you get to push for another dismissal. You have dropped this case down on your priority list and weeks of potential investigation time are screaming by, but you are not concerned, because since one must be exposed in order to be infected, your causation argument is in the bag.

Unfortunately, you are operating on a partial set of facts, and it easy for anyone who has ever touched litigation to see exactly how it happened. If you only remember one thing from this blog entry, remember this:  However innocent the error, anyone who wants to FOIA your FOIA will find out when you “learned” about the distribution, even though you never really knew it.  This could turn into a very nasty surprise for you, so be aware of your breadcrumbs.

Finally, it is a lot of work to prepare and process a sizeable FOIA request, so to FOIA a FOIA simply must be beyond the fiscal reach and general patience of most people, therefore most of the time we can bank on them not doing it.  Right?

Wrong.  Although record accessibility varies by agency, anyone with an internet connection may now search FOIA online using any keyword – such as your client’s name, your firm name, or an exposure site name – that may generate a hit.  Whereas in the olden days, someone may have needed to be willing to take multiple (snail mail-based) shots in the dark to find that out, the functionality of being able to search by key words has essentially eliminated that requirement.  If your client’s name (or a product name or a site name) is in a document, it takes very few clicks to link back to the original requestor.  Was it your paralegal?  Was it your longtime local counsel?  Was it you?

Due to the number of documents filtered through this site, the search process can be admittedly somewhat cumbersome for a beginning user, but just keep in mind that this information is really now just a smartphone away.  In many situations, of course, this will not matter.  However, if you are concerned about the breadcrumbs you may be leaving behind you during a discovery investigation, you have some key considerations:

  1. Who is the frontline person making your request, and how easily does that track back to you?
  2. Is it sufficiently  narrow to avoid documents that are not currently responsive, yet sufficiently broad to cover the instant case?
  3. Finally, do you have a system in place to adequately track both your requests as well as the content of the universe of documents received, both now and for the future?

Each litigation team marches to its own drummer, and each sector of litigation has its own concerns.  But, in a post-Google world, the details become more pressing.  The internet never forgets, as they say, so as routine and harmless as FOIA requests can feel, be sure you are monitoring your breadcrumbs and have identified solutions to the above.  Preferably, solutions that keep you from hitting the Snakebite Alarm years down the road due to the routine request you will sign off on tomorrow.

——-

Photo credits:

Snake Bite Alarm:  dallasnews.com

1.  The nine standard FOIA exemptions are as follows:  (1) Information that is classified to protect national security; (2) information related solely to the internal personnel rules and practices of an agency; (3) information that is prohibited from disclosure by another federal law; (4) trade secrets or commercial or financial information that is confidential or privileged; (5) privileged communications within or between agencies; (6) information that, if disclosed, would invade another individual’s personal privacy; (7) some information compiled for law enforcement purposes; (8) information that concerns the supervision of financial institutions; and (9) geological information on wells.

2.  In this case, it happened to be the National Archives making the log request, but it is more fun to think about it being a mysterious individual somewhere tracking the alien investigations being conducted by other individuals.  If you are into that sort of thing, anyway.

Part 2- Purgatory- Dante and Early Case Assessment- there is light at the end of the tunnel


 

Dante_Domenico_di_Michelino_Duomo_Florence

 

For better waters, now, the little bark of my poetic powers hoists its sails, and leaves behind that cruelest of the seas

Purgatory- Canto 1

Summary of Part 1- Inferno:

Even though you live a life of unparalleled virtue (at least from time to time), you find yourself once again boarding Charon’s little boat for another journey into the underworld. A journey brought about by another mass tort filing. But, this time you’re planning to take a different approach. This time you’ll escape.

—————–

But before going further, maybe you can’t envision an actual escape. Maybe the facts are clearly stacked against you and you think there’s no way out. Before you give in and start writing checks,  you should consider the mess created with the Hurricane Katrina claims. Clear liability should not be confused with paying anyone who makes a filing. Hurricane Katrina was a terrible storm resulting in thousands of claims. But many of the claims were not legitimate as the fraudulent Katrina claims proved. If you’re in a similar highly publicized situation, you may find some relief from the heat by not caving in to public pressure and take the time to examine each and every action.

Stradano_Inferno_Canto_03_BPlanning the escape from mass tort Hell…

For those willing to challenge the established thinking, an  escape plan focusing on early case assessment may very well be your Get Out of Hell card. It starts at the onset with casting a wide net to build the plaintiff’s profile.

Early case assessment is all about people. And people always have stories. From Thoreau to Elton John‘s Aida: some lead lives of quiet desperation and others picture themselves as living elaborate lives. But, to paraphrase Albert Camus: every plaintiff has made a series of personal choices that put them on the road to this litigation.

Your plan will involve searching for facts connected to those personal choices and  reducing those facts to knowledge.

Facts are single puzzle pieces. The more facts the greater the knowledge base. But, the more puzzle pieces the more difficult the puzzle.

Knowledge is making sense of the facts. Seeing the entire puzzle.  That’s what you’ll need for your escape plan.

But, be aware that your plan will fail, and fail miserably, if you elect to search helter skelter for isolated facts with no overall purpose or plan in mind. Gathering isolated facts is fun, but you’ll remain in Hell if having fun is all you want to do. Only those with serious intentions of getting out are successful. You just don’t luck up on an escape hatch.

It is important to begin your research with no preconceived notions regarding the subject. See Andreas Ekstrom’s TED presentation on the moral bias behind your search results.

If you’re searching in order to gain knowledge (which is the  reason for early case assessment), then conducting research with preconceived biases will not lead to real knowledge. It will only lead to biased research with all the complications of selective filtering. Certainly not the complete story. A cookie cutter approach will not work. What will work is imagination, expertise, grit and determination.

Escape from hellEvery fact leads to knowledge.  Some facts are good for your defense, others not so much. But all give you added insight into the potential financial exposure and risk associated with the litigation. The more you know the more accurate your risk calculations.

But the facts won’t voluntarily come in and surrender. You’ll need to take the initiative to track them down. Sooner rather than later because they may not hang around.  See previous post on The Shelf Live of Facts.

Here are some areas to consider once you have sufficient fact pieces:

  • Establish credibility or lack thereof of the plaintiff. Are they believable?
  • How will they hold up to the grueling rigors of extended litigation?
  • What keys to understanding are hidden in their background?
  • What is the driving force behind the litigation? Anger, revenge, money, competition, politics, pressure from outside sources?
  • What are the weak points for the motivation? What are the strong points?

And, with your escape plan firmly in place, you’re ready to rumble. With Part 3- Paradise; we’ll explore what a new client actually found when they decided to put up their dukes and fight.

Part 1- Inferno- Dante and Early Case Assessment- there is light at the end of the tunnel

abandon all hope

 

You see it every night. The television volume goes up several decibels, and suddenly you’re confronted with a law firm  seeking clients who used your product. A few months later the litigation starts to roll in from all over the country and you’re confronted with the reality of dealing with another mass tort filing with another long list of plaintiffs. You’ve been there and done that. But no matter how many times you’ve been there before, it’s time to head down that dark passageway once again.

Just like so many previous trips,  you’ll travel through the 9 circles of mass tort hell. And, in case you forgot, here’s a refresher on what you can expect:

circles-of-hell-in-dantes-inferno_50291c3324df2

 

Limbo- Described as spending eternity in an inferior place. In this instance, spending  countless weekends at the office while the family is at the beach

Lust– no time for that

Gluttony- You will have time for this, but really- how much take-out food can you eat?

Greed- The initial demand letter

Anger- There will be those moments

Heresy- Opposing counsel never seems to run short of provocative theories to test your mettle

Violence- You hope not, but you never can tell

Fraud- What you may be accused of

Treachery- Another  accusation possibly coming your way

 

 

Sound familiar? All these circles are well represented in any mass tort filing. And you’ll slog through the muck, circle by circle, for what seems like eternity, if you don’t have an escape plan. A plan that involves early case assessment.

 

But not every company thinks that early case assessment is a priority item. Those companies are content  with where they are. Not too hot, and not too cold depending on their perspective and how far they are from the grasp of the dwellers of the 9th Circle- Judas, Brutus and Cassius.  They would rather follow the longtime established industry regime  for dealing with the defense of  mass tort litigation and hope for a different result. But hope does not live here. You abandoned it at the door.

But, what if you decided that this time you won’t go down the same dark and scary path? What if you changed your perspective? What if you developed an attitude? What if you took a page from Peter Finch’s character-Howard Beale– in Network, and shouted to the rooftops “I’m mad as hell, and I’m not going to take this anymore.” Now that’s an attitude that could make a difference.

 

In Part 2, Purgatory- we’ll explore what a new client did to regain hope by  developing  a viable escape plan from a newly created mass tort filing by initiating an early case assessment strategy . Their departure from the norm has all the key elements to successfully extricate them  from the grimy pit of the inferno of mass tort defense as usual to the more enlightening and calming realms of  a middle ground leading to a better life. In this case a real life after enduring years in  the inferno.

 

 

 

 

 

 

 

 

 

 

From juicy grapes to wrinkled raisins – solutions for 4 types of facts that can lead to sticky situations

SmiCar15-002 Fact Shelf Life 20151029

 

Whenever you see flies or insects in a still life- a wilted petal, a black spot on the apple- the painter is giving you a secret message. He’s telling you that living things don’t last- it’s all temporary

The Goldfinch

You make an assumption going in that the facts will always be there. Alive with freshness and ready to pick whenever you’re ready. So no need to worry about the facts right now because there are so many other things to do. Put them low on the priority list and get to them when you have time.

Bad move.

Just like everything else in life, facts have a shelf life. But the problem is, they don’t come with a printed expiration date. A ticking time bomb with no visible clock.

Witnesses:

They begin life as bystanders. Right place at the right time, or wrong place at the wrong time depending on their tolerance for the legal system. From the very beginning their memories will start to fade. With time, they may also start to question just how much they want to be “involved”  in the world of litigation. There may also be community pressures if their testimony goes against the thinking in their town and among their friends. Then there’s the problem of identifying and locating them if the fact investigation is delayed. What seemed so clear at the beginning may be reduced to worthless testimony at the crucial time it’s needed.

Solution: Find them now, make friends (admire their velvet Elvis painting if you have to), and get their testimony on the record.

Social Media:

Everyone thinks that nothing goes away once it’s posted to the internet. That’s not an absolute. Social media is deleted, accounts are changed from public to private, once popular platforms go dormant. In the world of instant data the reverse is also true- instant deletions. Social media sites must be scoured, profiles found, analyzed and preserved in a timely manner and with trial presentation in mind. And once found, continuous monitoring must be initiated.

Solution: Similiar to Witnesses, but you don’t have to worry about the painting appraisal. Just capture and properly preserve the postings.

Evidence: 

Evidence gets lost. It corrodes. It hides. It gets put under wraps by opposing counsel. A lot of things happen to evidence except for two things: it doesn’t remain the same and  it doesn’t get better with age.

Solution: The point is get it now and get it secured.

Public Records:

Courts:

All court records are not the same. It all depends on the court, the clerks and the judges. What is public in one court may be private in another. And, no one in the clerk’s office really cares that you can quote the Freedom of Information Act word for word without taking a breath. They’ll decide what’s public and what’s not. Court records that were once public and readily available  can be (to name a few actual instances): sealed long before your request or even while you anxiously await your copies, lost, redacted beyond recognition, relocated to protected archives, deleted or “checked out” by opposing counsel who has no intention of ever bringing them back. And, that’s just a few ways that once open and available court records morph into less desirable forms. More are being invented every day.

Other Records:

Other public records have less structure, and include (among other things) employment, financial, environmental, news and genealogy as general areas of interest. Each has some information available through internet searching, and others require proprietary database subscriptions. And, putting boots on the ground may well lead you to honeypots that Google searches could never imagine.

Solution: It may go against the grain, but try being nice. A box of donuts works wonders. Getting into an argument also works wonders, but at the other end of the spectrum. An argument with a records clerk will at best get you a “no” answer, and at the worst get you an overnight stay in the local jail where Aunt Bee will not be bringing your supper. Public records acquisition can be a long and tedious endeavor. Be prepared for the long haul.

The D-Day Invasion and Large-Scale Litigation- taking lessons on planning from Eisenhower and Patton

Supreme CommanderJune 6, 1944

Nothing could have been more dependent on planning than the D-Day Invasion.

While Eisenhower valued the activities involved in planning more than the plans themselves:

 Plans are worthless, but planning is everything

Patton just wanted to get moving:

A good plan violently executed now is better than a perfect plan executed next week

Whether the plan called for sending Patton to England to direct a deception operation or dispatching frogmen to the Normandy beaches to gather sand samples, the invasion was planned down to the very last detail.

———–

We’ve all started hearing about the new processes of the day; six sigma, legal project management, critical path analysis, process management, project management, lean project management, etc. But no matter what the concept is called, and no matter how amazing the results translate to the overall success of the matter, all these processes are dependent on three things: creating a plan, crafting a protocol and executing.

According to Seth Godwin:

 Every complicated project is the same. And yet most organizations focus on shiny objectives or contentious discussions or get sidetracked by emergencies instead of honoring the critical path (the longest string of dependent, non-compressible tasks). Delaying the critical path by one hour at the beginning of the project is the very same thing as delaying the entire project by an hour at the very end

But in the case of fact investigations and large-scale litigation, the delays can extend way beyond one hour and in fact into weeks, months and sometimes years and by then it’s often too late. Witnesses are gone, documents are missing, social media has been deleted, or evidence has been destroyed. The very information that could have bolstered the defense is gone for good because there was no sense of urgency,  no protocol, no standard official procedure or system of rules in place to prioritize the fact investigation in order to ensure that the critical path would be honored.

Normandy LandingsThe solution begins with planning….

Immediately identify the critical time-sensitive elements that will aid in gauging the risk exposure in order to create an early picture of: who sued me? This includes social media, public records, witnesses and evidence as a general rule, with added tasks tailored specifically for the particular defense regarding alternative causation, historical research, family history and credibility.

Then moves to the protocol…

Without a clear definition of what is involved, who will do it and when, and who is privy to the information obtained, the entire goal of obtaining timely and accurate information gets bogged down in the process, and oftentimes the defense is in fact put on the defense.

Standardizing an official procedure regarding what to do, who’s doing it, how and when  it will be delivered, and at what cost, is the objective.

And ends with execution….

And, speaking of Patton following his death in 1945, Eisenhower provided us with a vivid definition of execution in action:

He was one of those men born to be a soldier, an ideal combat leader whose gallantry and dramatic personality inspired all he commanded to great deeds of valor. His presence gave me the certainty that the boldest plan would be even more daringly executed

The boldest plan daringly executed. Eisenhower and Patton on what it takes to win a war.

 

Image courtesy of flickr – Dutch Simba and Military History

 

LexBlog