Sunday, March 28, 2010
How To Try a Lawsuit
Getting the verdict paid, well that was altogether another thing.
A young lawyer friend of mine is scheduled to try her very first lawsuit, next week; and, while the probability of her matter actually going forward is slim to none, you never know. Laura must act as if it is actually going to proceed. This morning, Laura was agonizing (my word, not her's) over how to have a document that she believes is crucial admitted into evidence at trial in light of the fact that the attorney who prepared the matter prior to her assumption of the case skipped steps which would have made admission of the document automatic. We talked about her scramble to get this document "authenticated," in the absence of testimony from the custodian of the document. As I've said before, and I don't want to overuse the metaphor, but this is classic "inside baseball."
You do not have to be a young attorney to be perplexed and agitated by the rules relating to how evidence is handled at trial. It's not unlike trying to dance, and not being able to remember the number of steps that you make with your left foot and those you make with your right foot and which direction: backwards, forwards, left or right. While some of this important, the reality is a trial is not like being on television or the radio where "dead air" is to be avoided at all costs. There are rule books and it is not uncommon for matters to grind to a halt while these debates are worked out. More importantly---most of the time what should come in for the Judge or jury to consider comes in, and the stuff that should stay out, stays out. Where the trouble comes in, most of the time are the unnecessary arguments over superfluity. That which is beyond necessity or relevance. The arguments themselves take on an importance and life of their own that are distracting and crippling--it has always seemed to me that evidentiary argument is a lot like martial arts, it's not the punch it's the psychic energy wasted in focus on the worng things that is to be avoided at all costs.
WHAT IS MY CASE ABOUT? That is the question. How do I prove my case? That is the next most important question. You prove your case with credible and relevant testimony which comes primarily from your client, and the defendant. If a person says something that is not true and you can confront them with a document, even a documnet that has "not been authenticated" (and therefore can not stand on its own as separately admissible evidence, but) which contradicts what the party or witness says, no court is going to say you can't cross-examine them on this evidence. So have at it.
Stay focused on the case!
Laura is trying a lawsuit that involves another young woman who bought a "great" used BMW for $20,000. Her dealer advertised this "great" car even though he knew or should have known that the car had been in an accident and had a damaged chasis. The dealer denies knowing that car damage reporting services had documented this damage, notwithstanding he held this vehicle out to the public as "great." The last time I looked the common english definition for "great" is "markedly superior in quality." This damaged car was not, and moreover documents readily available to this dealer said so.
That in a nutshell, is my Laura's case. The fact that this car dealer will say he did not read the reports means that he is either a liar or grotesquely reckless. In either event she should be able to show this from her client's testimony or the dealer's testimony. The argument over whether my friend can independently offer the ":car fax" and otheer documentation--as stand alone evidence, should not occupy one further moment of anxiety in my young friend's preparation.