The Importance of Documents

I would sooner trust the smallest slip of paper for truth than the strongest and most retentive memory ever bestowed upon a mortal man. --Joseph Henry Lumpkin, American Jurist

When juries retire to decide the the results of a trial, they evaluate the evidence presented to them. There is no doubt that documents trump testimony in importance. This is because jurors trust documents more than witnesses. Jurors expect witnesses to shade their testimony to one side or the other. Documents created before trial, often before a lawsuit was ever contemplated, are deemed to speak the truth more often than do witnesses.

Too often trial lawyers inundate juries with innumerable documents, so many documents that the power of the most important documents in a trial are diluted with unimportant exhibits. Most trials, not matter how complex the issues are, boil down to no more than three to five critical documents. It is the trial lawyer's job to bring those documents to the attention of the jury, citing their importance in helping the jury decide the case.

What this all means is that a client should create and maintain important documents if they think litigation might ensue at some future date. Documenting conversations and confirming facts with an adverse party is an important part of pre-litigation document creation and preservation. Damning admissions by an adversary that surface in emails or correspondence can make the difference at trial.

Clients should not expect the other side to preserve emails and other documents. There is too great a temptation, despite severe penalties for doing so, for parties to eliminate emails and other documents of importance when litigation is expected. That is why it is always advisable to print or download emails and other digitized documents so that they are preserved for later use in litigation.

Remember, documents testify, as do witnesses. Documents that are created in the ordinary course of business--not those perceived to be self serving--speak the truth to a jury.

Another important aspect witness testimony, as opposed to documents, is that humans have an illusion of memory. Human memory does not store a person's observations of events like a tape or video recorder. To the contrary, "what is stored in memory is not an exact replica of reality, but a re-creation of it. We cannot play back memories like a DVD--each time we recall a memory, we integrate whatever details we do remember with our expectations of what we should remember." The Invisible Gorilla, Chabris, Christopher and Simons, Daniel, Crown Publishing New York.

What this all means is that witnesses can give testimony they believe to be true when it is not. That is why the preservation of documents is important. Documents force witnesses to confront a recording of events that was created at the time of the events' occurrence. If a witness gives testimony that is contradicted by a believable document, the document impeaches the credibility of the witness, especially if the witness authored the document that impeaches him or her.

Of course, document preservation, including the preservation of all electronically stored evidence, is required of parties to litigation whenever litigation is reasonably expected to occur. A word to the wise, however, is for anyone thinking about filing a lawsuit to preserve evidence as soon as litigation is contemplated.

A Crisis of Candor

While having lunch with a long time friend recently, we discussed a fellow lawyer whom I regarded as being less than honest. My good friend disagreed with my assessment of the lawyer's character. He described the lawyer as being crafty, conveying that this quality was a positive attribute.

The reason why I regarded the defense lawyer to be dishonestly crafty was my experience with him in a personal injury case. The defense lawyer sought the dismissal of my client's case by claiming she "assumed the risk" of her injury. He did this despite knowing that the defense of assumption of the risk has been practically eliminated by the Pennsylvania Supreme Court. The defense of assumption of the risk requires an injured party to knowingly encounter an obvious risk, disregarding the dangers that risk poses to him or her. For a defense attorney to succeed using an assumption of the risk defense, the injured party must encounter a risk of injury or danger with an attitude of knowing indifference.

In my client's case, she opened and walked through a solid door at a construction site, not knowing what was on the other side of the door because of the ever changing circumstances at the work site. Her injuries were permanent, serious and life changing. It is undisputed that my client did not know what was on the other side of the solid door. She didn't knowingly disregard an obvious risk. At best, she was negligent in opening and walking through a door that she forgot she was instructed not to use. Proper application of the law of negligence would have allowed her to have her case decided by a jury. A jury should have decided how much her negligence should have reduced her amount of recovery against the construction company that did not properly barricade or place a warning on the door to prevent its use.

My client's case was dismissed by a trial judge who ignored the legal precedent relevant to assumption of the risk. It is possible that the judge ignored the legal precedent of assumption of the risk because the crafty defense lawyer did not cite and explain the existing and relevant legal precedent and try to distinguish the facts of the case before the court to avoid the application of the same.

I don't fault the trial judge for this injustice, although courts should know the law as it is applied to facts. The culprit in this nightmare for my client is the crafty defense lawyer. He failed to discharge his obligation of candor to the court, hoping to win at all costs. His lack of candor presented the court with an unnecessary legal conflict to be resolved against a backdrop of him filing a brief filled with sophistry that ignored my client's argument to apply existing precedent. He hoped to confuse the Court and succeeded in doing so.

I was taught my candor obligation by my mentors, gentleman and lady lawyers who were licensed to practice law in the aftermath of WWII. These giants of the law taught me that all lawyers owe a solemn obligation of candor to the Court.

Candor means honesty in the context of acknowledging and deferring to existing legal precedent announced by court decisions in prior appellate cases or by a trial court in the county where the case is is filed. Candor enables lawyers and their clients to rely upon stare decisis or "standing decision" such that they can expect that legal precedent will be applied to their case if they can prove their facts mirror the facts giving rise to the legal precedent relied upon. If every case were a free-for-all of argument with no guiding precedent, no lawyer could advise clients to file or not file a complaint based upon existing legal precedent. Legal anarchy would ensue, as it did for my client.

Our adversarial system of justice assumes that both plaintiff and defense lawyers will acknowledge applicable legal precedent, whether that precedent is helpful or harmful. Courts depend upon lawyers involved in a case to educate judges of the existing legal precedent that applies to the facts of a case. If a precedent is harmful, the lawyer is required to disclose and accurately explain the precedent to the court. The lawyer faced with negative legal precedent has only one candor option. That option is to distinguish the precedent by convincing the court that the facts of his/her case are distinguishable from the facts giving rise to the existing precedent. Convincing the court that the facts in the case are distinguishable allows the skillful and candid lawyer to argue that the existing legal precedent ought not apply to the unique facts of the case before the court because such application will lead to an absurd or unjust result. Zealousness and candor are reconciled.

Lawyers are required to be zealous and candid, not zealous and crafty, if crafty is equated with purposefully ignoring or misinterpreting legal precedent. An attitude of winning at all costs ignores the obligation of candor and results in unpredictable and inconsistent legal rulings for our citizens. Unfortunately for our citizenry, my experience is that my lawyer colleagues fail miserably at discharging their obligation of candor in pursuit of winning at all costs.

I recall the oft used phrase of my evidence professor in law school. "Change the facts, change the law!" My professor's proclamation rings in my ear to this day. It was his way of encouraging his future lawyers to be candid with the court in resisting the application of precedent to facts that are distinguishable to the fact pattern which created the precedent to be avoided.

Only courts can compel the return to candor by requiring it of attorneys whenever it is lacking. Only if lawyers are upbraided and possibly sanctioned for the lack of candor will they refrain from advocating arguments that are inimical to a lawyer's obligation to educate the court about the precedent that applies to the facts of the case.

Until then, I struggle with opposing counsel who obfuscate rather that educate the court about controlling precedent. Too often, I oppose mega law firms that throw everything but the kitchen sink at my client in terms of arguments, including arguments that ignore or misinterpret clearly established legal precedent.

All the while, my clients pay for the lack of candor by higher legal fees and being the victims of delay and legal decisions that fly in the face of existing legal precedent that was relied upon in filing and defending the case before the court.

Candor and zealousness can coexist only if lawyers fear being penalized for shirking their responsibility, as officers of the court, to be candid about legal precedent that could harm their chances of winning. After all, some of the best legal advice to be given to a client is an explanation of harmful legal precedent that lessens the chance of winning. It is only then a client can make a risk of loss decision that is consistent with existing law.

The Importance of Creating Contemporary Notes

In litigation, it has often been said "documents drive a case." Documents are something individual jurors, judges and arbitrators can wrap their arms around in deciding the facts of a case. A document is a story or human observation frozen in time as opposed to human memory, which is malleable.

Historian Nathaniel Philbrick observed that "Living in the here and now, we are awash with sensations of the present, memories of the past, and experiences and fears for the future. Our actions are not determined by one cause; they are the fulfillment of who we are at that particular moment. After that moment, we continue to evolve, to change, and our memories of that moment inevitably change with us as we live with the consequences of our past actions, consequences we were unaware of at the time."

Human memory is not fixed akin to a computer file of information that can be retrieved. Rather, human memory changes over time and regularly becomes more inaccurate as time elapses. Testimony, not supported by documentation, is characterized by an opposing lawyer as self serving and inaccurate--made up just for the witness' testimonial moment.

Recording in writing an observation or statement nullifies the argument that present memory is imperfect and weakens the characterization that memory refreshed by a document is self serving. That is why it is important for clients to keep pain logs in personal injury cases or, in employment cases, to keep personal notes of what a supervisor or co-worker says to them.

Documents exert substantial influence over jurors and judges, as they should. Notes can be effectively used at trial to refresh a witness' recollection on the witness stand. The refreshing of a witness' recollection can be a theatrical moment in the courtroom. The lawyer asks the witness, "Do you have a precise recollection of what happened on April 1, 2007?" The witness credibly and truthfully answers, "no." The lawyer then casually remarks, "I am now handing you what has been marked at Exhibit 1 and ask you to read it and tell me if you recognize Exhibit 1?" The witness, quickly recognizing the document as his/her personal notes or journal, testifies that "Yes I recognize this document. This document contains my written notes of what I observed on April 1, 2007." The lawyer then instructs the witness to review his/her notes. Following the witness' review of the notes, the lawyer asks the witness, "After having read your notes, is your recollection now refreshed as to what occurred on April 1, 2007?" The witness affirms that his/her recollection is now refreshed. The witness' testimony proceeds, in response to the lawyer's questioning, with the witness telling the jury or judge what happened over three years ago. In reality, the witness is speaking but the document is testifying. This is the kind of courtroom scene a lawyer lives to create. It is in these moments that the document, a contemporaneous recording of the observations of the witness, testifies in court through its creator, imbued with the credibility of a camera.

Documents also are a key aid in telling the story of a case on direct examination. Direct examination is the witness telling his/her story without the lawyer directing the examination asking leading questions that make it appear that the lawyer is the person testifying. Documents are a great prop to use in the flow of direct testimony. Introducing documents breaks up the monotony of a witness droning on as he/she tells a story in the context of direct examination. Jurors and judges wait in anticipation to see what information an anticipated document contains. Documents provide extra stimulation to the consumers of the direct examination story--the individual jurors or judge. Simply put, documents are another witness because documents, just like witnesses testify.

Notes in the form of pain logs are critical to the success of a personal injury case. Coping with the pain of an injury, a medical operation, convalescence and permanent injury is a journey of unique pains. If these unique pains are not documented, a client is unable to recall, in vivid detail, the day-to-day suffering he/she endured at the hands of the defendant. Giving a jury a handwritten journal of documented pain can be a powerful influence on a jury deciding how much to award in pain and suffering damages.

My advice to clients and perspective clients is to keep a journal or notes of important observations. It is best to keep notes in your own handwriting. Everyone knows that the computer files can be changed. Don't forget to date your notes. Otherwise, the writing could be considered "made up after the fact." Also, keep in mind that personal notes and journals are discoverable by the other side in any litigation. It is for this reason it is important to be factually accurate but to refrain from gratuitous comments that could cast you in a bad light.

At Will Employment in Pennsylvania

Pennsylvania, as many states, abides by the at-will employment doctrine. The at-will employment doctrine, simply translated, is that "an employee can be discharged for reason or no reason at all."

An exception to the at-will doctrine, allowing an employee to challenge his/her discharge, is when the employer's decision to discharge violates public policy. An example of a discharge that violates public policy is when an employee is discharged because of their disability, gender, age, race, national origin, religion, or pregnancy. Courts also have ruled that persons discharged for exercising their statutory rights to workers' compensation or to be paid wages within 30 days as is required by Pennsylvania's Wage Payment Collection Law have been fired in violation of public policy entitling them to bring a Wrongful Discharge suit against the employer.

There is no legal right for an employee to challenge his/her firing because he/she was fired because the employer just didn't like him/her or thought that the employee wasn't a good fit for the employer. This is true even if the employee relocated from another city and was fired soon after being hired. In sum, employees do not have a legal right to be treated fairly or even civilly.

A means of protecting yourself as an employee is to seek a written employment contract. Of course, many employees don't have the leverage to demand the job security a contract offers. But if you do, negotiate an employment contract that provides for a fair evaluation procedure, and fair standard to be used in determining whether employee conduct warrants discharge and an arbitration clause with a loser pays provision to adjudicate disputes over an employment termination or breach of the contract. Any employment contract also should spell out salary, including increases, and all benefits.

In sum, just being treated badly or unfairly at work doesn't mean you can successfully sue your employer for firing you. In fact, many management consultants advise employers to quickly fire employees who do not fit in or who are perceived as troublemakers or non-team players.