McElhaney on Litigation

Oops, My Fault

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Myra Hebert was steamed. She stormed into the Brief Bag, threw her attaché case on the floor and sat down at our table with a malevolent glare on her face.

“What’s up, Myra?” I said. “Anything wrong?”

“Wrong?” Myra said. “That doofus of a client I’ve got—that’s what’s wrong! That unspeakable body part just totally destroyed his entire case, cost me months of work plus all of my out of pocket expenses, and left the judge and jury laughing in my face. “I never should have taken the case. That insufferable jerk. We didn’t have time to go over his deposition before trial, so I warned him not to try to improve the facts. But despite what I said, he couldn’t resist exaggerating his case at every turn.

“He went so far out on a limb on direct examination that a couple of the jurors started to roll their eyes. And when Dick Mudger took him on cross-examination, my plaintiff got caught in so many contradictions that half of the jurors began to chuckle, and a couple of the others started to whistle under their breaths.

“But the capper was when Mudger finished his cross, and I said, ‘Redirect, your honor?’ Judge Wallop said, ‘If you think it’ll do any good.’ ”

“You rest your case yet?” I said.

“No. Got to go back Monday morning and put three more witnesses on the stand,” Myra said.

“Well, at least you’ve got the weekend to come up with a strategy for pulling the fat out of the fire,” I said.

“My strategy is to leave the fat in the fire and never again consent to represent such a dumb client,” Myra said. “I’m going to ask for permission to withdraw from the case on grounds of client incompetence.”

“I hear you,” said Beth Golden. “It’s hard not to blame the witness when things fall apart like that.”

“Blame the witness?” Myra said. “Who else could you possibly blame?”

The silence seemed to last a long time. When Myra got up and started to leave, Beth said, “Hang in there, Myra. By Monday morning you’ll be ready to start kicking lawyers and taking names.” Myra smiled and walked out.

“Wow!” said Regis McCormick. “I saw Dick Mudger’s cross of Myra’s client, and I just thought what a beautiful job he did of taking the witness apart, piece by piece. I didn’t think about it from Myra’s standpoint until just now.”

“No doubt in my mind that Mudger did a fine cross-examination,” said Flash Magruder.

“But it sounds like he also got a little help from Myra.”

“Why is it Myra’s fault if her client started exaggerating the facts in his case?” said Mike Pirelli.

“Confabulation,” said Angus. “Unconsciously replacing fact with fantasy in your memory is a natural human tendency. Everybody does it to some extent. It’s not intentional lying—although there is plenty of that going around, as well. Confabulation is subconsciously ‘improving’ the story so it fits our psychological needs better than what actually happened.

“Lawyers make it worse by failing to work with their witnesses before trial by reviewing their documents, statements and depositions with them. It’s one of the best ways to make your opponent’s case look good.”

“Maybe there’s a basic principle here,” Flash Magruder said. “Behind every great impeachment is a lawyer on the other side who cut a corner in trial preparation.” “Not always,” Angus said, “but true enough to put on your wall.

“In fact, lawyers like David Landever of Weisman, Kennedy & Berris in Cleveland take the problem so seriously that they not only have their witnesses read through their depositions at least twice, they also work through both direct and cross examination in great detail. They want to keep the facts from growing and also keep their witnesses—especially experts—from trying to become advocates who want to ‘go in and win the case for you.’ ”

Later on, I accused Angus of working on another one of his lists, and he said it was “just a work in progress.” But he had already written down reasons why we sometimes miss things, as well as some of the things that can turn around and bite us when we forget to do them.

Why We Miss Things

• “We trust our clients.” like John Pyle of Gold & Pyle in Cleveland says, “It’s their case, and we want to believe them.” But the problem is that too often our clients lie to their lawyers—us.

• “This case will never go to trial, so we’ll take some depositions, argue some motions and play the game just hard enough to position ourselves for settlement.” A risky assumption. It’s the way to miss all kinds of information that could make or break the case when it actually does go to trial.

• “We don’t have to hire an investigator. We can get everything we need in discovery.” Wrong. Formal discovery is the most expensive, most time-consuming way to learn anything. And there are some things you will never get in a deposition or a document. Like Edward Bennett Williams used to say, “There is no substitute for knowing everything.”

• “We don’t have to worry about all the other nasty tangles our client is involved in. Those lawyers on the other side are too dumb to figure out what’s going on.” Never count on anyone not getting it—especially the ones who act like they’re unsophisticated. President Lyndon Johnson used to say, “Anytime someone tells me he’s just a poor country boy, I put my hand on my wallet.”

• “Don’t worry about those bad facts; the law’s all on our side.” Oh, yeah? Then why didn’t the judge grant your motion to dismiss your opponent’s case? And do you really think the judge is going to grant all your motions in limine? Of course you want to keep the bad facts out of evidence if you can, but you’d better start planning from the beginning what you’re going to do when they actually get admitted.

How to Stay Out Of Trouble

Here are some of the more important points from Angus’ list of things that can cause you trouble if you don’t do them. But they are only a beginning. As Gerald Messerman of Cleveland’s Messerman & Messerman says, “There are zillions of mistakes lawyers make that hurt their clients and ruin their cases.”

• Run a claims check on your client. If you represent a plaintiff, spend the $35 to $50 to see whether the person has ever sued anybody before—especially for the same injury. Nothing is more devastating than finding out in the middle of trial that your plaintiff sued someone else for the identical lower back injury three years ago.

• Do a background investigation of your client—even corporate officials. Several years ago, a massive suit by a small cell phone company against GTE blew up in the plaintiffs lawyers’ faces when it turned out their client’s CEO had been convicted a few years earlier of being part of a car theft ring. He was the one in charge of creating the phony titles once the cars had been run through the chop shop. How did the case blow up? The defendant knew about the CEO’s record, but the CEO’s own lawyers did not.

• Check your clients—especially the corporate ones—on the Internet. What your clients tell you and what they put on their Web sites can be embarrassingly inconsistent.

• In discovery, always ask the other side for any statement it has that was made by your client. That is not subject to the workproduct privilege even if it was obtained in preparation for litigation. Rule 26(b)(3), Federal Rules of Civil Procedure. Nonparty witnesses also are entitled to get their statements from the party who has them, but the witness has to do the asking. On the other hand, there is nothing in the rule that says you can’t help your witnesses make the request.

• Get and review all the documents you can before taking depositions. The better you know the documents before you start asking questions about them, the more you’ll learn when you do.

• Get the expert’s notes before you take his or her deposition. Formal—and carefully massaged—summaries of expert opinions, like the reports produced to satisfy Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, can be remarkably uninformative. On the other hand, the expert’s notes, comments and initial impressions often are a cross-examination goldmine.

• Be two deep in the proof of every fact essential to your case. This means having at least two witnesses or two documents (or one of each) establishing every fact necessary to prove your claim or defense. Life is uncertain. People die, disappear, forget or simply change their minds. If part of your case hangs on the testimony of only one person, take that deposition.

• Check out the judge. Whether the case is tried by judge or jury, you need to know as much as you can about the person who is going to be sitting on the bench.

• What you don’t know can kill your case.


McElhaney at His Best

The ABA Journal is occasionally reprinting some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s October 2001 issue under the headline “Fault Lines.”

James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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