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.