Preparing for Your First Meeting With a Litigator

What the first meeting is for

A first meeting with a litigator has three jobs: to find out what happened, to identify the claims, defenses and deadlines that follow from it, and to decide whether and how to proceed. How much of that gets done in one sitting depends almost entirely on what you bring. A lawyer reading the contract for the first time across the table can give you a reaction; a lawyer who has the contract, the emails and a timeline can give you an assessment.

This article is the checklist. For the questions to ask the lawyer once you are in the room, see questions to ask before hiring commercial litigation counsel.

Documents to bring

The agreement, complete

• The signed contract, operating agreement, lease, purchase agreement or employment agreement, with every exhibit, schedule and amendment.
• Purchase orders, statements of work, change orders and invoices that make up the deal if there is no single master agreement.
• Any guaranty, NDA, non-compete or side letter that touches the same relationship.

Litigators read for specific clauses: notice and cure, termination, limitation of liability, attorney's fees, choice of law, venue or arbitration, and any required pre-suit step. Bringing a partial copy means those answers wait.

The communications that show what happened

• Emails, text messages and messaging-app threads around the key events: the breach, the complaint, the refusal to pay, the resignation.
• Letters from the other side or its lawyer, including any demand letter and any deadline it set.
• Internal notes, meeting minutes or memos written at the time.

Do not edit, excerpt or summarize these. Forward or export the originals. A screenshot of one message loses the thread, the date and the sender information that a court will later want.

The money

• What you are owed or what is being demanded, with the invoices or calculations behind it.
• What has been paid and when, with bank or accounting records.
• What the dispute has cost you so far: replacement vendors, lost work, repairs, staff time.

Damages are where many business cases are won or lost. Texas law requires lost profits to be proven with reasonable certainty, from data rather than hope, so the lawyer will want to see the records that exist and learn which ones do not.

Company and background documents

• Formation documents and the current ownership structure if the dispute is between owners.
• Insurance policies: general liability, directors and officers, employment practices, professional liability. Coverage can change who pays for the defense, and most policies require prompt notice of a claim. Will my business insurance cover this lawsuit explains what to look for.
• Anything filed in court or served on you, with the date and manner of service.

Write a one-page timeline

The single most useful thing you can prepare is a chronology: date, event, who was involved, which document shows it. Write it from the documents, not from memory, and keep it to a page or two. Where you are unsure of a date, say so rather than guessing.

Mark the document "Prepared at the request of my attorney" and give it only to the lawyer. A chronology written for the purpose of obtaining legal advice is a confidential communication; one circulated to staff or partners may not be.

Is the meeting confidential if I do not hire the lawyer?

Yes. Under Texas Rule of Evidence 503 the attorney-client privilege covers a person who consults a lawyer with a view to obtaining legal services, whether or not the lawyer is ultimately retained. The lawyer also has a professional duty not to use or reveal what you disclose. You can speak plainly about the facts, including the facts that hurt your position. Those are the ones the lawyer most needs to hear first.

Two cautions. Bringing a third person into the room (a friend, an unrelated business associate) can weaken the privilege; bringing a co-owner or officer of the company usually does not, but tell the lawyer who everyone is. And if the lawyer may represent the company rather than you personally, ask at the start whose confidences are being protected.

What to stop doing now

Other steps that protect your position before the meeting:

• Do not send the other side a long explanatory letter, admission or counter-accusation. Short, factual holding responses are fine; arguments can wait.
• Do not post about the dispute or the other party anywhere.
• Do not make or accept a partial payment or a "final" payment without advice, since a check marked paid in full or a payment on a disputed invoice can carry legal consequences.
• Do not sign anything the other side sends, including an "acknowledgment" or a tolling agreement, before a lawyer reads it.
• Do not forward privileged emails from a prior lawyer to anyone outside the company.

If your company received a litigation hold letter, what a litigation hold letter requires sets out the steps. Deleted data has consequences of its own, covered in deleted emails and lost data.

Know your deadlines before you walk in

Some dates cannot be moved. If a petition has been served on your company, the Texas rules set the answer date at 10:00 a.m. on the Monday following the expiration of 20 days after service; a missed answer date can lead to a default judgment. If you have been served in federal court, the time to answer is generally 21 days. Demand letters often set their own deadlines, which are not legally binding in themselves but can be tied to statutory notice periods or contractual cure rights. Limitations periods run from the breach or injury, and mechanic's lien and construction notice deadlines run from the month work was performed.

Bring the date and method of any service, the date of any demand letter, and the dates of the key events, so the lawyer can check each clock in the first meeting rather than the second.

What the lawyer will ask you

Expect questions you may not have thought about:

• What do you actually want: money, performance, an exit, an injunction, or the relationship back?
• Who is the other side, and can they pay a judgment? A win against an insolvent defendant is a different decision from a win against a solvent one.
• Who else knows the facts, and who would testify for the other side?
• What is the worst document in your files, and who has seen it?
• Has anyone else been involved: a prior lawyer, an accountant, an insurer, a mediator?
• How much management time and attention can the business spare for a year or more?

Honest answers to these produce an honest evaluation. The lawyer is not judging the business; the other side's lawyer will find the same facts in discovery, and your side should know them first.

What you should leave with

A well-prepared first meeting should end with the lawyer's view of the probable claims and defenses, the deadlines that apply, the court or forum the case would likely be in, the immediate preservation steps, a sense of the likely phases and their cost drivers, and a recommendation on the first move: a demand letter, a response, pre-suit negotiation, or filing. Where the documents do not yet answer a question, you should leave knowing which document or fact will.

Example

Suppose a Dallas marketing agency is owed six months of fees by a client who says the work was substandard and has stopped answering. The owner arrives with the signed services agreement and its two amendments, the invoice history, a folder of emails in which the client approved each deliverable, a page of dates, and the client's last message threatening to "go public." In one meeting the lawyer can read the fee clause and the termination clause, see that the approvals undercut the quality defense, note that the contract has a notice-and-cure step that was never used, flag the threatened publicity as a point to address in the demand letter, and outline the cost of a suit on a contract claim in a Dallas County court. Without the approvals and the amendments, most of that would have waited.

Tina Wysk meets new clients in downtown Dallas and begins each matter with this kind of document-based assessment. Contact details are here.