I'm often asked this question so I'll attempt to provide a high-level roadmap. My first step is to use the FIRAC method to organize my work. I identify the facts, spot the legal issues, research the legal rules that apply to the project, analyze the facts and draw conclusions about the legal risk and possible mitigation strategies. This is an iterative process, particularly in the international context. It takes years of experience and practice to get this step right and with every project, I learn something new.
Facts are data points that are objectively verifiable. They are not opinion, conjecture or assumptions. For example, the description of the goods (e.g. 100% cotton) you are selling internationally are facts and often lead to their classification for tariff purposes. Their selling features (e.g. comfortable) are opinion and normally not relevant to the legal analysis of whether the goods are exportable but may be relevant when complying with foreign marketing laws. In that case, I would track the opinions and assumptions separately. Additionally, not all facts are equally important.
Since I'm a Canadian lawyer, I look at the issues, rules and analysis from a Canadian law perspective for the purpose of getting a cursory understanding of where the sticking points may be in the project. Legal issues fall into categories like contract, tort (e.g. negligence or product liability), property (e.g. intellectual property), regulatory (e.g. import/export controls and taxes), and consumer law (e.g. the implied condition of merchantable quality), to name a few. After getting this overview, I list the mitigation steps for any risks I've identified. For example, I may identify the need for certain contract provisions, trademark checks, import/export permits, tax planning, etc.
After this step, I seek advice from specialized Canadian counsel and foreign legal counsel. I don't contact them before I've done my own analysis and I've done a bit of research about foreign laws. I find doing the analysis beforehand allows me to plug any holes in information with my client and provides a starting point for discussions. Doing some research about foreign laws also helps me understand their legal systems and usually alerts me to any differences in nomenclature. It also substantially reduces costs by enabling me to manage counsel more precisely than if I just handed them the project with no prior understanding.
I usually start with counsel from the "big 5" markets - Canada, U.S., U.K., E.U., and Australia. I go to smaller markets from there and might consult regional firms for areas like Asia, South America and Eastern Europe. During discussions with specialized Canadian counsel and foreign legal counsel, I often revise my initial analysis, we spot more or different legal issues, and I discover different legal rules and mitigation strategies to consider. Since my ultimate goal is to find a common approach for all or at least groups of jurisdicitions, I test different strategies with counsel to find the tension points and limits.
After the legal advice comes in from foreign counsel, the research and analysis phase of the project is largely complete. In order to make the information meaningful for the client, I group jurisdictions based on similarities so that I can apply common risk mitigation strategies to them. I identify any outliers or difficult jurisdictions so that the client can decide whether they want to proceed there at all. Since you can't really bullet-proof a client there will always be residual risk after applying mitigation strategies. In my opinion, the decision to accept or reject that risk is a business decision. After the client has made their decisions, I proceed to put the approved risk mitigation strategies in place.
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