Playing Loose with Facts

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A few months back we discussed the importance of honesty and credibility. In line with that theme, Brendan Kenny of The Lawyerist recently wrote an article titled, “Why Hyperbole Will Destroy Your Case and Understatement Will Save It.” The article goes further in expressing the significance of maintaining your credibility as an attorney. It includes examples with story lines and excerpts of video depositions. The article even goes one step further and discusses strategies for handling attorneys that cross blur the line. It is a truly intriguing article that I encourage everyone to read.

Here are a few excerpts:

“Playing loose with the facts invites your audience to question your sincerity and suspect that you are trying to manipulate them. They may retaliate by rejecting your client. In short: avoid even the appearance of insincerity.”

“If you distort or even fudge, you’ll be found out. And if you’re found out, you’ve lost everything there is to lose. You’ve lost credibility”

“If you exaggerate the strength of your client’s case in your mind, you will naturally do the same in your written and oral advocacy. Because your tone doesn’t fit the case that the judge and the jury are learning about, they will soon start doubting your honesty, sincerity, and competence.”

Read the article in its entirety at, Why Hyperbole Will Destroy Your Case and Understatement Will Save It.

Argument & Credibility

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Reputation and credibility are everything. I no longer tweet but one thing I enjoyed was that it forced me to express my thoughts in 140 characters or less. Forcing oneself to truncate his or her words and focus only on those necessary is an invaluable practice, especially for attorneys. According to the Statistic Brain Research Institute, a human’s attention span is now 8.25 seconds; thats less than a goldfish. Subsequently, the quicker that you deliver your argument the higher the probability that it will resonate.

Continuing that thought – while hoping I still have your attention – how you utilize one’s time presenting arguments will affect your credibility and reputation. Do not tatter your credibility with arguments that are illogical or implausible.

As a civil defense attorney, occasionally we are dealt a bad hand. A set of circumstances with no means of lending a clear path for your client’s release. On the day of reckoning, whether arbitration, ADR, or trial, everyone knows your plight. In spite of those circumstances, we must represent our client and their best interests vigorously. In unique circumstances I believe this is best achieved by conceding some areas, only to win big in others. To do so, we must maintain our credibility, as well as value the trier’s attention span, by presenting only the most logical and suitable arguments. Pointing out every possible area of contention is not effective nor necessary. Select your best arguments, the ones that you believe will stick.

So now you are thinking, “OK, sounds good, but where is the proof.” For some time I wondered the same. However, I recently came across an article that detailed this very approach. The defense was faced with a daunting task and a good liabity argument was essentially non-existent. Injuries appreared to be related, but the parties did not agree on the extent of such injuries. The defense obtained solid evidence pertaining to damages going at the heart of the plaintiff’s credibility. However, it was going to be critical for the defense not to diminish their credibility arguing liability where their client was clearly at fault. Read here to see the results, Admitted Liability/Reduced Damages.

In short, your credibility is everything. When placed in a tough position with little to work with, face those limitations head on. Admit your weak areas. This will go far in building your credibility and using it to persuade the trier on your more favorable arguments. Our arbitration panels, juries, and judges are human-beings. Arguing liability where the facts are clear that your client is at fault will undoubtedly affect your credibility. In fact, it may lead the trier to feel that you are unreasonable or out of touch with reality; and as a result could lead them to not value your other arguments. Instead, consider conceding liability, accepting responsibility on behalf of your client, and move on to argue damages pointing out key areas where you disagree with the extent of the injuries. Not only is this where you will score points, but where the trier of fact will value your argument, testimony, and candor.

A Civil Justice System With No Trials

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This article was first published in the Texas Bar Journal‘s December 2013 issue. — Ed.

The steady erosion of the American trial is our dirty little secret. A majority of the American public might be surprised to learn that there is indisputable statistical evidence that the number of jury and non-jury trials in our country is, and has been, sharply declining, both in absolute and relative terms.1 For example, in 2010, only 2,154 jury trials were commenced in federal district courts, which means, on average, Article III judges tried fewer than four civil jury trials that year. While jury trials in federal court obviously have declined, the decline in bench trials has been steadier and steeper.2 Even though the number of lawyers continues to increase, the number of trials is still decreasing.3

Nor is the decline in the number of cases tried due to a reduction in case filings. To the contrary, both civil case filings and dispositions actually have increased five-fold in the federal courts during the same time that the number of trials—both the rate of trials as well as the absolute number—has diminished substantially.4

What do these trends portend for the future? They mean that, despite its historical importance and value, we are slowly but surely losing one of our most precious institutions—a trial by jury or even any trial at all. James Madison, the drafter of the Seventh Amendment, would be puzzled by how we allowed this to happen, given his view that “[t]rial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”7

See, A Civil Justice System With No Trials