By Christopher J. McHattie & Tara Quaglione

In the midst of litigation, or as it seems at times the “fog of war,” a key function of both attorneys and clients is to “issue spot;” i.e., to carefully consider each newly discovered fact and potential problem, to scrutinize even the most minute detail, because it may trigger a new angle, defense, or legal theory. While most cases typically unfold along a standard pattern, keeping your eyes open for previously unconsidered facts, legal theories or unexpected patterns has the potential to create a favorable turn in the litigation. An issue that may appear minor at first blush can potentially determine an entire case when investigated fully and exploited appropriately.

We settled recently a high-profile international arbitration involving an Irish distributor and a US manufacturer/retailer who was acquired by a French manufacturer/distributor/retailer. Initial investigations pointed to a standard breach of contract matter with whiffs of unfair competition. As the facts were fleshed out, the case took an unexpected turn–bingo!

In the midst of discovery, facts emerged indicating that the whiffs of unfair competition were actually the precursors of potentially serious trade regulation/competition issues; i.e., what had been done to our distributor client likely was just one instance of a systematic, pretextual termination strategy. Recognizing the potential implications, the Firm sought advice from European co-counsel to investigate various EU anti-competition laws. Our typical breach of contract matter turned into something completely different. In fact, in the midst of preparing for the Defendants’ depositions, a review of the Defendants’ publicly available Annual Reports disclosed only one type of case, trade regulation. Because we kept our eyes open to new facts and legal theories, we were able to use publicly disclosed information to turn the matter squarely in our client’s favor. The case was advantageously resolved before any depositions were taken.

In short, be alert. Without overdoing doing it to your client’s economic disadvantage, be certain to review each matter on an individual basis, and each new fact on an individual basis. Always keep your mind open to the implications of those facts and the non-traditional and unexpected issues that may be suggested.

If you are going to litigate, do it well, be a great litigator.