In NYLJ Article, Partner Michael Bowe Discusses Importance of Pre-Litigation Investigations

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.