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Thursday, July 12, 2012

Lie or lose or lie and lose?

Jonny Marray was trying to become the first British man to win a Wimbledon doubles title since 1936.  He and his partner were unseeded and the most they had previously won at a competition was $800.  Yet, there they were in the 2012 Wimbledon men’s doubles finals.  They were tied at one set apiece and in a tiebreaker for the third set where every precious point counts.  Marray made a nice play on the ball at the net and he and his teammate were awarded a crucial point.  Marray had barely grazed the net with his racket on his follow-through which is a technical violation of the rules resulting in loss of the point.  No one seemed to have noticed what he had done.  Without being asked and without hesitation, Marray told the chair umpire he had hit the net.   The chair umpire reversed the call and awarded the point to the other team.  Ultimately, Marray’s team won the set and the match. 

Compare Marray’s actions with those of Dewayne Wise of the Evil Empire a.k.a. the New York Yankees.  Wise jumped into the stands and appeared to glove a foul ball.  What really happened is that ball bounced out of his glove and rolled to a fan sitting several seats away who proudly held up the ball, as baseball fans often do, in complete ecstasy.  The umpire immediately called the third out without requiring Wise to show him the ball.  Wise ran back to the dugout without a word to the umpire (classic Yankee move).  Wise was quoted as saying, “So what was I supposed to do?  Run back to left field?”  It is easy to divine how Jonny Marray would answer that question.  The more difficult task is to decipher how you or I would answer that question.

Litigation is like sports in many ways.  There are teams – Plaintiff v. Defendant.  There are umpires:  “The Honorable . . . .”  There are lots of rules.  Some of them are arcane and of little use, while others make a lot of sense.  Like sports, each side presses for every advantage.  Just as in sports, often the stakes are high and someone’s livelihood is on the line. 

Because of the high stakes, some clients believe a lawyer will do anything, including lie, in order to win.  In my experience most lawyers do not lie.  Good lawyers determine what the facts are and then do their utmost to argue them to their advantage.  Lawyers have a bad reputation for trustworthiness and that reputation has unfortunately been earned by a small minority of bad lawyers that are truly the exceptions to the rule.

When preparing a witness to testify, the first thing most lawyers tell the witness is to “just tell the truth.”  That is the easiest and simplest way to keep the witness out of trouble.  A lawyer would rather identify the weaknesses in his case ahead of time so he can address them head on.   But it can be hard for a party in a lawsuit to tell the truth.  Litigation can be a lot like a Griswold family vacation.   At the start of the journey everyone is excited to go on a cross-country trip in their shiny “new” green station wagon.  The journey is treacherous, your aunt’s dog gets dragged to his death, your aunt herself dies, and you may even have to provide financial aid for your degenerate brother-in-law while sampling his real tomato ketchup.  You finally get to the end of your journey completely out of money only to find out Wally-World is closed for two weeks in the middle of summer.  Desperation and fatigue take over and you point a bb handgun at unsuspecting security guard who looks a lot like John Candy and require him to take your family on all of the rides. 

When you are in a particularly contentious litigation matter you can easily feel like Clark Griswold.  It would be easy to stretch the truth just a little in order to paint your case in the best light.  In any legal matter neither the attorney nor the client ever needs to create a “lie or lose” situation.  Desperation and fatigue breed poor decision making.  It never truly is a “lie or lose” situation.  In a litigation matter the more likely scenario is “lie and lose.”  Credibility is king in court and a demonstrated lack of credibility is the death knell to an otherwise compelling case.  Good lawyers know how to catch a witness in a lie and then exploit that lie to their advantage.  If you lie in court you are more likely to lose than win.  So before rushing to buy a bb gun at the local sporting goods store, take a deep breath.  That way you can avoid hijacking your moral code and your chances of a successful outcome.

I was so shocked when I watched Jonny Marray risk everything he had worked for in order to maintain his personal integrity that I made my wife come in from the other room to watch it.  On the other hand, I was not surprised at all that Dewayne Wise took credit for an amazing catch he did not make (and not just because he plays for the dreaded Yankees).  Hopefully my reaction is nothing more than my cynical nature coming through and not an indication of moral decay.  In any regard, it is probably the only time I would suggest following the Brit and ignoring the Yankee.

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

Staff at 1:35 PM
Litigation
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