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.