Abra Cadabra: Why won't bad facts just disappear?

This week is International Magic Week. A week to celebrate and appreciate the talents of those skillful with the slight of hand. Unfortunately, lawyers do not have any magic wands to wave over the bad facts of our cases in hopes that they will just disappear. And if we try the "pay no attention to the bad facts behind the curtain" approach, inevitably the little dog Toto, in the form of our capable opposing counsel, is there to pull the curtain back and reveal them for the whole courtroom to see. So what is an attorney to do with bad facts. Let me offer a few suggestions from my own experience on how I manage bad facts in my cases.

1) Make sure your client tells you everything.

The only thing worse than a bad fact, is a bad fact that you do not even know exists. It may be easy to feel you know the whole story when dealing with a long-term client, a client that you trust is telling you everything you need to know. It is trickier with the new client, someone you have no prior dealings with. In those situations, you have to go with your gut and keep fishing for information until you are satisfied that you have the whole story. One tactic I take with my new clients is to explicitly tell them that I need to know everything, even the bad stuff. I make sure they know that telling me does not mean I am going to tell the other side, but that it makes sure that I am prepared to deal with it if (and when) the other side finds out.

2) Make sure your client knows all of the bad facts

Hand in hand with making sure your client tells you all the bad facts, is making sure you tell your client all of the bad facts that you learn from your opponent. We must always keep in mind that the client is truly the one who should control the course of a case. It is our job as lawyers to advise the client, based on our training and experience, what we feel is the best course of action, but ultimately, whether a plea deal should be taken, or a settlement should be agreed to, is the decision of the client. The client needs to know all of the information necessary to make those decisions. Trust me, if the client decides not to settle a case because they feel the case is air tight, and it turns out that your star witness has several prior convictions for perjury, the client is not likely to be upset with the star witness, but upset with you for not telling them.

3) Disclose bad facts in court as soon as possible.

Whether the case is being heard by a judge or a jury, I always try to get my bad facts out as soon as possible. Admitting that your case is not perfect can make you seem more believable, more honest. I think everyone knows that no case is perfect, and just because your case is not perfect does not mean that you should not prevail. This can be especially true in front of a jury. Keeping bad facts to yourself, and having them come out through the opponent's case can make you appear as if you are hiding from those facts. Putting them out there allows you to control the flow of information, to some extent, and allows you to present those facts in the best light possible.

These are just a few of my thoughts on how I try to manage bad facts in my practice. I am sure all of you have thoughts on the matter, and I hope you will share them. Unless you went to law school at Hogwart's (the school of wizardry in Harry Potter, for those of you not as dorky as me), we all need to be able to deal with bad facts, because they won't just disappear.

Welcome to My Blog

I would like to welcome all of you, which at this point probably consists of my mother and a few friends, to my new space on the web. For some time now I have been kicking around the idea of starting a blog. The problem I have had is really two-fold: 1) convincing myself that people actually care about what I have to say and 2) figuring out what to say. I finally came to the realization that the only way to get over these problems was to start. So here goes. The focus of my blog, as the title suggests, will be on my work as a civil litigator. I chose this topic as it is what I have known for my entire professional career. My intention is to post on issues that arise during the course of my practice in the areas of personal injury, worker's compensation, and medical malpractice (keeping the neames to myself of course). I also will throw in my two cents about recent court decisions or topics of interest in the news. While it may seem that these topics will only be pertinent to the legal practitioner, my intention is for the audience to be much wider. I hope that through my musings on the legal process, the general public can have a better appreciation for what we do as attorneys and understand how we can help them. I look forward to this new venture and hope that I can provide pertinent items for education and discussion.