Quote:
Originally Posted by Rococo
I have never encouraged a witness to avoid telling me some fact that would gut a defense. And i've never seen anyone else do this either. It would be the height of stupidity. If you don't know the bad facts, then you can't prepare for how to deal with them. And it is much more difficult to lie convincingly than most people assume. There is almost always a paper trail. If you tell a story that is obviously inconsistent with the documents, you won't have much credibility as a trial witness.
I'll share an anecdote on this point.
As a very young lawyer, I worked at a large firm. For a period, I worked on the defense side of a securities fraud case that revolved around dubious merger accounting.
During the course of reviewing materials for a deposition prep session the following day, I came across a document that I immediately knew would be one of the five worst documents in the entire case for our side. The document had been collected from hard copy files. As best I could determine, it had never been saved electronically and it had never been sent to anyone by email. Based on the content of the document and the location of the hard copy files, I was 95% certain that the author was a relatively high level executive (just below C-suite).
I took the document to the partner on the case. I explained why it was bad and why I thought this particular executive had written the document. She told me to set up a phone call with the executive and to let her do all the talking.
An hour later, we were on the phone with the guy. The partner made it seem like we just needed some help understanding how to interpret the document. At the end, she asked the executive in passing if it was possible that he had written the document. He gave some nonsensical response along the lines of, "I can't be sure. It covers a lot of topics that I was focused on at the time, but it doesn't seem like the format and language that I would have used." She thanked him and the call ended.
When we got off the phone, I asked the partner why she had been so gentle and why she had accepted that mealy-mouthed bullshit about who wrote the document. Her response was, "I was worried that if I came on too strong, he would get defensive and tell me a lie that he would never feel comfortable backing away from. In particular, I was worried that he would be emphatic that he had not written the document. I'm already stuck with a horrible document. I don't want to get stuck with a horrible document AND a lying witness. If I give him a little time, it will be easier for him to admit that he wrote the document."
An hour later, the executive called the partner and said, "I've given that document more thought, and now I'm pretty sure that I wrote it. I know it's bad. How should I handle it at my deposition?"
It was one of those moments when I realized that I didn't know everything about how to be a lawyer.