Litigation Tips
The attorneys at our firm collectively have over 50 years’ experience practicing law. Just when we think we’ve seen it all, we see some new behavior that has the attorneys (or the judge) shaking their heads. To help all of us avoid such avoidable “SMH” moments in litigation, scroll down to read our top 4 litigation tips.
Litigation Tip #1: Tell the Truth
The first tip is a rule of law (and morality) so obvious, yet so neglected, that it’s easily at the top of our list: Tell The Truth. If you are ever involved in a legal proceeding, it is absolutely essential that you tell the truth about what you know to the best of your ability.
Why should you tell the truth? It is a moral good. It also is the best path to success in a court case. Our attorneys often have experienced the deep satisfaction of representing clients well by showing a document to the adverse party that contradicts that party’s prior statement. But we have also seen clients lie only to be shown to have made a false statement or claim.
To whom should you tell the truth? If “Everyone!” seems too broad an answer:
The judge. If the judge discovers you lied under oath, not only will you almost certainly lose your case, but also you could be tried and convicted of the crime of perjury.
The opposing parties, attorneys, and witnesses. If your opponent can prove that you lied, and if your opponent has any neurological function, he or she certainly will present your fabrication to the judge or jury. You will then lose credibility, thus probably losing your case.
Your lawyer. In fact—after God and your spouse—your lawyer is the very first person with whom you should share information you believe is damaging about your case. In almost all situations, your conversation with your lawyer sharing what you believe is damaging information will be subject to the attorney-client privilege. If you share this information “up front” with your lawyer, you help yourself by allowing your lawyer time to prepare a lawful strategy to maintain the confidentiality of whatever can remain undisclosed, and as to anything that will come out in the case, to prepare a strategy to achieve maximum “damage control.”
What does it mean to tell the truth? It means to state the facts of which you have personal knowledge, and perhaps to state (with the right qualification) what you may not personally know but what is likely factually accurate. Telling the truth does NOT, however, mean to state what is hearsay, your guess, or even worse, pure speculation.
When you speak the truth, you make it better for the world, yourself, and…your case.
Litigation Tip #2: Retain Your Composure
Litigation is inherently stressful. It is a war filled with battles, a dispute with many arguments, and a battle of unyielding wills. Beyond these stresses, the conduct of the opposing party or lawyer, and the method of his or her questioning of you during a deposition or trial, may be designed to elicit a response from you that decreases your credibility before the judge or jury.
To have the best possible chance of success in your case, your demeanor must be polite and civil. It is imperative that you not lose your temper or argue unnecessarily with the lawyer on the other side of the case. Be as natural, relaxed, and friendly as possible in answering questions during depositions, hearings, and trial.
Even outside the presence of a court reporter, judge, or jury, retaining your composure provides you (and your lawyer) more control over the outcome of the case. If you are viewed as too temperamental, your opponent can more easily take advantage of you.
This is not to recommend wimpy deference. It is to recommend aggression that is level-headed, intelligent, and purposeful. Smart and calculated (and lawful) blows are more likely to find their mark than frantic antics. If you present—in written and spoken word—as a composed and shrewd individual, the opposing lawyer may tell his or her client that he or she faces increased risk facing you at trial.
In litigation, respect is scarcely granted freely. It must be earned. If you stay composed, you’ll be on your way.
Litigation Tip #3: Avoid Absolutes
If you are a party to a legal proceeding, you more than likely will be subjected to questioning. This is true whether you are a plaintiff (party who filed the suit) or defendant (party who has been sued). Every party has the right to ask other parties questions about the case, using depositions, written questions called interrogatories, and other discovery methods. You may have to answer questions orally and in writing.
You will get questions asking you to recall things that have faded into memory. You will also get questions with seemingly obvious answers. When responding, it’s crucial to avoid the impulse to express an overly confident “never” or “always.” Our experience in litigation counsels that too often, absolutes have a way of coming back to haunt the people who use them.
How can you convey confidence without using absolutes? If, for example, your regular practice is not to make calls on your cell phone while driving; but you cannot honestly say you have never looked at your phone while driving; but also, you’re certain you were not on the phone at the time of the car accident, say exactly that. There is no excuse for needlessly boasting that you “never” make calls while on the road. When the other party subpoenas your cell phone records showing multiple dates when you’ve made phone calls at 7:45 a.m., and you’ve already testified that you drive the kids to school at 7:45 a.m. every day, your needless “never” won’t seem so clever.
How should you handle questions asking for specific details about an accident, a listing of doctors who treated you, or other information requiring probing of your memory? Avoid absolutes, and use truthful but appropriate qualifying language such as “I presently recall…,” “I do not presently remember saying that…,” or “to my best of my knowledge I wasn’t there at that time.” If you’ve been asked to list all prior automobile accidents, and you’ve described the three accidents you remember, you could say something like this: “I have told you about all the prior accidents that I recall. While I believe I’ve identified all prior accidents, if you have some documentation of some other incident you believe I’m not presently recalling, if you show it to me, I’d be glad to tell you whether I know anything about it.”
Some questions cannot be answered with a simple “yes” or “no.” If you are asked such a question, you may indicate that a simple “yes” or “no” answer wouldn’t be complete or isn’t possible, and then explain your answer. This is true with both oral testimony and in answering written discovery questions.
When asked questions during a trial or deposition, your opponent’s attorney may ask whether you have provided all the information you know, or whether there is anything else that you know about a particular subject. These "roundup" questions—which will tempt you to give an absolute response—are a trap for the unwary. Your response often should be that you have stated the information to the best of your recollection.
Also be careful in answering questions about time, distance, speed, depth, and other numerical matters. Our perceptions on such matters are often mistaken. When asked such a question, you may wish to provide a range of potential numerical values and explain the facts that make such a range a reasonable approximation.
None of this is meant to deny absolute truth. But it is to recommend bold humility as a litigation posture. Our humble suggestion: If you choose to resort to absolute descriptions, be prepared to be proven absolutely wrong, and (possibly) to absolutely lose your case.
Litigation Tip #4: Stay on Guard
Our final tip is counsel that, broadly applied, is simple yet powerful guidance that will serve you well for the entirety of your case: Stay vigilant. In wartime, the adversary is always scouting, plotting, and observing your movements, seeking to find and exploit any weaknesses. The same is true in litigation, and therefore you must always remain on guard.
Resist the temptation to boast to your family, friends, and colleagues about victories in the case, or worse yet, to complain to them about problems with the lawyers or other parties. When you speak about the case to someone other than your lawyer, you make that person a potential witness. If that person is subpoenaed and winds up speaking from the witness stand (yes, it happens), that person will be questioned under oath. Your once-trusted confidante will now be in the courtroom and, if questioned by your opponent’s attorney, likely will be required to quote your statements about the case for the judge or jury to hear. It will not be hearsay for the witness to quote what you, a party to the case, previously stated outside the courtroom. The risk of such embarrassment is not worth the temporary pleasure or intrigue from your having needlessly chit-chatted about the case.
An analog rule—and one that’s even more critical than avoiding oral discussions—is to avoid communication about your case on social media. If you document your thoughts about the facts (or the law) in a written, electronic form, your adversary can then download those words and display them on the courtroom projector or jury screens. News stories often regale us with tales of posted-then-deleted X or Instagram posts that endure because someone screenshotted or otherwise saved the posts before the authors deleted them. Further still, for the duration of your case, be sparing in social media posts. Maintain an upstanding online presence. If you’d feel uncomfortable seeing it at trial, don’t post it online.
In addition to spoken words, written messages, and typed social media posts, your actions matter. Once upon a time, a personal injury claimant had to be mindful of possible video surveillance while cutting the grass or carrying boxes into his home. Oh, if things were still so simple! Everyone has a cellphone, and now, a vast array of your movements, gestures, and other behavior is easily captured by the device-wielding public. Assume that shrewd opposing counsel will be able to get the video into evidence against you, because that assumption is often true.
Your vigilance during court and other appearances in your case must be particularly heightened. Anything that you say in your deposition could be later used against you in court, on occasions such as hearings and the trial. In both depositions and in court, there are several things to consider. Take your time thinking before you answer a question. Don’t fill pauses in the other lawyer’s questions with an elaboration of your answers. Fully but concisely answer the question asked, and then remain silent for however long it takes until the next question is asked. Avoid profanity, jokes, and most attempts at humor. Exercise caution before resorting to casual or colloquial expressions.
Be wary of trick questions. The opposing lawyer may ask you, "Isn't it true that . . ." or "Would it be fair to say . . . ." Such questions may be attempts to mischaracterize part of your prior testimony or to get you to agree to a half-truth. Politely indicate that you disagree with the mischaracterization of your prior testimony or the false or unproven premise in the question. If the question mischaracterizes, you might answer, "I do not believe I said that, but if I did, I was mistaken. The proper answer should be ‘x,’ and I will explain why." If the question contains a false premise, say so. Above all, don't let another lawyer or litigant put words in your mouth.
It has been said that “eternal vigilance is the price of liberty.” In litigation, vigilance is the price of success. It will be a small price to pay for the headaches and heartaches you’ll avoid.