The devil is in the documents

Published: 13 June 2011 by Jeremy Birman

Court cases are mostly decided on the facts in dispute – not on esoteric points of law or by the brilliance of barristers’ arguments.  And it’s surprising how often litigants leave sorting out the facts to the last minute.  Sometimes what seemed to be a rock-solid action can collapse overnight because a factual point was overlooked.

Similarly, the validity of any legal opinion always turns on the accuracy and completeness of the facts upon which it is based.

So the first thing to do is to get the facts right.

Documents – written contracts, correspondence and file notes – are the most reliable source of the relevant facts.  Few people have total memory recall.  In most cases, our memories play tricks making it almost impossible to recall the substance and sequence of events and conversations with total accuracy without resort to any available aide-memoires such as notes or diary entries.

That’s why courts usually place greater weight on documents and contemporaneous notes than on oral recollections of matters that may have occurred years earlier.

Of course, evidence of what people said and when they said it plays a significant role in most trials.  So it’s important when preparing witness statements to be as thorough and accurate as possible.  Even an innocent mistake can make you appear unreliable if not dishonest if it is inconsistent with something in writing.

To get it right, we prefer to collate and review as many documents as possible at the beginning – even before obtaining a detailed statement from you or other witnesses.  We can then cross reference what you tell us with the relevant documents to ensure that your evidence is accurate and consistent.

Initially, this process may appear daunting but it’s guaranteed to save you time and money in the long run.  It enables us to accurately assess your chances of success and to advise you of appropriate strategies.  There’s little point in going to court or defending an action unless you are planning to win!

At Birman & Ride, we go to great lengths to manage every document relevant to your case from the time of your initial consultation.  We scan, register and catalogue every document as soon as we create or receive it.  Documents are then automatically electronically circulated to you, relevant team members and, where appropriate, third parties.

Our document management systems are a key feature of ContactsLaw, the state of the art legal practice management software developed for us in-house by Overtech Technologies Pty Ltd.  With ContactsLaw our lawyers can register, catalogue, search, read, edit, duplicate , print and forward documents in seconds. 

And because the documents are catalogued with a comprehensive description at the outset we can produce indices and copies for affidavits, discoveries and trial bundles quickly, accurately without repetitive typing and at a fraction of the cost and time taken by our more conventional competitors.

You can help (and save money) by:

• scanning (preferably) or photocopying all of the documents relevant to your case (including emails, agreements, correspondence, notes of telephone discussions and diary/calendar entries);
• delivering them to us in chronological order; and
• prepare a summary list of each documents (preferably in a Word or Excel table) with the date and meaningful description cross-referenced by number to the bundle of documents.

Managing documents is integral to the proactive management of your case and to achieving the best possible results.