In NYLJ Article, Partner Michael Bowe Discusses Importance Of Pre-Litigation Investigations – Arbitration & Dispute Resolution

Partner Michael Bowe wrote an article for the New York
Law Journal discussing the importance of robust, effective
pre-litigation investigations during major cases and their
essential elements.

In the March 29 article, Bowe recalled one such investigation
uncovering insider trading by a major New York hedge fund that
became part of a civil complaint and sparked a DOJ investigation
that eventually led to a major federal indictment and conviction
years later. Asked by a Washington Post reporter how he had alleged
in a civil complaint years earlier the information that became part
of the federal indictment, Bowe answered, “We looked and
listened.”

“And it was no coincidence that the same hedge fund and
facts became the target of a lengthy FBI and grand jury
investigation and subsequent SDNY indictment and conviction: we
brought that evidence to them,” he wrote. “Of course, the
government needed to conduct its own, far more extensive
investigation aided by grand jury subpoenas and FBI resources to
make a federal criminal case, but it all began with a presentation
of our investigative findings to the FBI and SDNY.”

It’s that kind of investigation, done by internal staff,
experienced former law enforcement, former investigative
journalists and skilled analysts that ensures the most efficient
litigation effort and best outcomes. Bowe noted that the more
common approach among many practitioners is to “file first and
figure it out as you go in discovery,” and lamented that while
this generates substantial billables, it is cumbersome,
time-consuming, costly and very rarely the best approach from a
merits or cost perspective.

Bowe recommended including a substantial investigative stage
into every major litigation plan and budget, with close
supervision. From the litigation team to ensure investigative
efforts are legal, ethical, meaningful and productive. The lawyers,
Bowe added, are best suited to ultimately determine what questions
to ask witnesses, what witnesses are credible, and what information
is valuable.

“Indeed, we view these three factors as so important that
for the last 20-plus years we have always maintained an internal
investigative function with investigators who are an integral part
of our legal team and understand our rules and standards,”
Bowe noted. “This has avoided the experiences many clients
have reported of previously working with a law firm that
commissioned a third-party investigative firm that months later
produced a costly and unproductive report that was clearly the
product of an unguided effort or, worse, compromised their
position.”

Read the full article here.

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