Do Not Let Litigation Rewrite the Past

Do Not Let Litigation Rewrite the Past

When a dispute begins, the way the parties read what happened between them changes.

What was understood during performance as a clear agreement may, after the dispute, become subject to a different interpretation.
What was accepted for years may later be described as a breach.
What no one objected to at the time may suddenly become the central issue.

For this reason, I treat narratives that emerge after the dispute with caution.

What is often more important is returning to what the parties said and did before each of them knew that they would stand in opposition to the other.

How did they perform the contract?
How did they describe the relationship in their correspondence?
How did they handle payments and obligations?
When was the objection first raised?

These details may be more truthful than many of the statements later drafted in written submissions.

Litigation gives each party a reason to reinterpret the past.

Documents and conduct arising during the normal course of the relationship, however, are often closest to revealing how the parties themselves understood their relationship before the dispute began.

That is why, when accounts differ, I first look for what the facts said before the parties learned the language of litigation.

— Omar Al-Baghdadi