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Names first, facts second

The single rule that governs a first approach is the order in which information moves. Send names before you send the story: the parties, including parent companies, subsidiaries and any trading names they use; counsel of record on all sides; the agencies, platforms, publishers and vendors that are likely to feature; and any non-party whose conduct is at issue.

The reason is not administrative. The test courts generally apply to disqualification asks whether the party claiming to have retained an expert could reasonably conclude that a confidential relationship existed, and whether confidential or privileged information actually passed. An exploratory call in which the matter is described in detail can create both conditions before anything has been signed, which is how a side loses an expert it wanted and how an expert loses the ability to work for anyone in the matter. Describing the parties in general terms until the check clears costs a day and protects everyone.

What to include so the reply is useful

Once the check has cleared, the more of this a first substantive message contains, the more specific the answer can be:

• The posture. Which side, whether the engagement contemplated is consulting or testifying, and whether it is an opening or a rebuttal role.
• The forum and the stage. Federal or state, the procedural posture, and whether discovery is open.
• The dates that constrain everything. Expert disclosure, rebuttal disclosure, the discovery cutoff, and trial. In this field the disclosure date is frequently less urgent than the retention windows running behind it.
• The channels involved. Search advertising, display and programmatic, paid social, organic social, email, affiliate, marketplace and retail, or the analytics and attribution layer — and which platforms specifically.
• The claim, in one line. Agency performance or scope, performance-based compensation, click fraud or invalid traffic, affiliate or impression fraud, false advertising, trademark use in advertising, or a quantification of loss.
• What exists. What has been produced, in what format, whether native exports were obtained, whether any accounts have been closed or access revoked, and whether a hold or preservation letter went out and when.
• The question you actually need answered. Stated as a question rather than as a conclusion you want supported.

If several of those are unknown, send the message anyway. Not knowing what exists is the ordinary condition three weeks into one of these matters, and identifying what exists is part of the work.

What not to send yet

Do not send privileged or work-product material before the conflict check clears. Do not send material covered by a protective order until the order has been reviewed and the terms of engagement are in place. Do not send the client’s entire file as a first attachment; a production dump before scope is agreed generates cost without generating anything useful.

Two practical notes on format. Email is not a secure channel and should not be treated as one — where the material is sensitive, use the transfer method counsel’s firm designates. And where records are ultimately sent, native exports with metadata intact are worth many times a PDF of the same screen, because a PDF has lost the field names, the granularity, the time zone and the date range that make a figure reproducible.

What happens after a message arrives

Messages are read and answered by me. There is no intake team, no assistant screening enquiries, and no referral service in between. The sequence is short: acknowledgement, the conflict check against parties, counsel, related entities and commercial relationships, then a call to discuss what the matter turns on and whether an expert is likely to help at all.

If the check does not clear, that is the entire response — the fact of a conflict is reported, the reason is not explained, and what was sent is deleted. If it clears and the matter is a fit, what follows is a written engagement letter fixing the retaining party, the role, the scope, the rate structure, the handling of productions, and the position on artificial intelligence use. Nothing before that letter creates an engagement.

Sometimes the useful answer is that the analysis contemplated cannot be built. Retention windows in this field are short and rolling, and where the decisive record aged out before anyone thought to export it, saying so early is more valuable than a retention that ends in the same conclusion three months later.

If the matter belongs to a different subject

Some enquiries are a better fit elsewhere and I say so rather than stretching. Disputes squarely about search engine optimization — ranking causation, algorithm updates, technical site performance — and questions about the admissibility of expert testimony are covered by a separate practice site. Domain name disputes, registrar conduct and cybersquatting belong to a different practice. Internet matters generally, including online defamation, sit elsewhere again. Where a matter needs forensic attribution of an actor, intrusion analysis, consumer survey design, or econometric damages modeling, it needs an expert in that field, and the usual arrangement is to work alongside one rather than to absorb the subject.

A referral costs a phone call. An expert who takes a matter outside his competence costs considerably more, and it is discovered at the worst possible moment.

What a first conversation is not

A first conversation is not legal advice, and nothing said in it should be relied on as an assessment of the merits. It is not an expert opinion: an opinion in this practice is formed on the record of a specific matter, after the conflict check has cleared, under a written engagement, and it is delivered in a memorandum or a report rather than on a call. It does not create an engagement, and it does not create confidentiality on its own — which is exactly why the order of information matters.

It also is not a valuation of the case. What a claim is worth is a question for counsel and, in most quantum disputes, for an economist. What can be settled on a first call is narrower and more useful: whether there is a record capable of answering the question, who holds it, how long it survives, and what it will not settle no matter who reads it.

About the message form on this page

The form below composes a message in your own mail application, addressed to this practice, which you can read and edit before sending. Nothing typed into it is transmitted to this website or stored here, because there is no server-side form handler and no third-party form service behind it. If your browser has no mail handler registered, use the address shown above the form directly.

Because a conflict check comes first, describe the parties in general terms in that first message and send no privileged, confidential or case material through it.

Or write directly: [email protected]