Most executives understand the importance of preserving evidence after a significant incident, but fewer appreciate that, in some situations, the most important evidence does not exist when the event occurs. It is created afterward.

The evidence that did not exist yesterday

The first decisions can have lasting consequences

This reality creates a difficult challenge. Businesses need to act quickly. They need to gather facts, assess risk, make decisions, and comply with legal and regulatory obligations. But they must do so knowing that almost every step may be scrutinized years later in litigation, arbitration, or a regulatory proceeding.

In my experience, organizations rarely get into trouble because they cared too much about the response. They encounter difficulty because they treated the response as an operational problem instead of a legal one.

What happens before counsel gets involved matters

By the time in-house or outside counsel becomes involved, key decisions have already been made, damaging emails have already been sent, informal investigations have already begun, and potentially privileged communications have already been circulated beyond those who need to see them. Most damaging of all is the instant message between witnesses that concede a foul up!

A good response starts with a plan

The organizations that navigate these events most effectively usually share one characteristic: they have a plan. They know who will make decisions. They know how information will be collected and communicated. They understand the difference between finding facts and creating unnecessary risk. Most importantly, they recognize that the quality of their process may ultimately matter as much as the underlying event itself.

Prepare before the pressure is on

A live litigation event tests far more than an organization's operations. It tests its judgment, discipline, and ability to make defensible decisions under pressure. Those qualities are often what determine whether the organization is in a stronger or weaker position than the day the event occurred.

The best time to think about a live litigation event is before you have one. If your organization does not already have a response playbook, now may be the time to start that conversation.

What are you going to do if something happens tomorrow? 

Craig Alcock is a commercial litigator who advises businesses on complex disputes, risk management, and efficient dispute resolution strategies focused on achieving practical outcomes.