Credibility: Truth, Lies, and Exaggerations
In every client engagement and resulting matter, a lot is riding on credibility-credibility with your counsel, the jury and the tribunal. It’s the main way that a jury and tribunal evaluate testimony of witnesses and parties. In a disciplinary case, the State Bar can add more Rule violations (See GRPC 8.4), and the dishonesty will definitely be considered an aggravating circumstance warranting additional ethical discipline. And credibility, like reputation, takes a long time to build, but can be destroyed in an instant. Think of your credibility or reputation as a piece of fine china. If the china is broken, it can be put back together with glue, but the crack or imperfection in the china will always remain visible.
The Truth, Even if it Hurts, is Best
As Mark Twain wrote “always do right – this will gratify some and astonish the rest.” Generally speaking, honesty is always the best policy. If a witness lies and the lie is shown with an incriminating document or two, that can be a huge problem. Or if the witness merely looks or sounds like they are being deceptive, their credibility is most likely gone. It might be possible to rehabilitate it, but even if it’s possible, it’s a long shot.
No case is perfect. It is always tempting to try to hide “bad” facts. Even if there are bad facts, seasoned lawyers will advise that it is always better to address them head-on. Addressing bad facts at the outset will help build credibility. Attempting to hide from bad facts only highlights them and could make them appear worse than they are.
Assume Evidence Will be Found
Just recently, counsel for a party with similar interests of our client contacted us and, unbelievably, attempted to extract a settlement with a promise that counsel would return the client’s file to his client where the client would then destroy documents which counsel alleged detrimental to our client’s claims. Obviously, our client refused to enter into such an agreement and admonished the lawyer. Between electronic communications, the Internet, social media, and public records, there are many ways to find out information about witnesses or parties. Yes, internet sites like TikTok, Instagram, Facebook and Twitter are regularly checked. Court records are also accessible, and good lawyers thoroughly review them. Even agency records can be obtained, through various federal and state open records acts, and good lawyers seek third-party discovery from them.
If there is an image or document that has a negative implication for your position, don’t hide from it. Figure out how best to deal with it, disclosing it and addressing it is the best tactic. There is every likelihood that the other side will find it anyway, and use it to ambush or impeach you. Trust us, you never want you, or your client’s witnesses, to be impeached with documents that contradict their sworn testimony.
Never Exaggerate
A corollary to the “tell the truth” admonition is, don’t exaggerate. Exaggerations make a party or witness look like they’re hiding something, by overcompensating. We all know opposing lawyers who have a bad habit of exaggerating in the name of zealous advocacy. After a while, the exaggerations from these lawyers have little effect and may actually work against them and their client. For example, exaggerating an injury’s pain, to hide the fact that it was not a significant impact. Or, exaggerating a loss of business income, to hide the fact that the contract was new. Speculation and exaggeration won’t earn a witness credibility with a jury, and can, in fact, irreparably harm it.
This general advice holds true for life, as well. For example, an injured person visits doctors or other medical providers. Being untruthful, or exaggerating things, will end up written down in medical records. The opposing party will use those records, of course (see above!). This is also true for other types of damages, like business income. Saying a claim is worth $1,000,000 when it’s really worth $50,000-$100,000 will destroy a witness’s credibility, fast. We once caught a legal malpractice plaintiff suing our lawyer-client lying to four different medical providers about the extent of her injuries. During the litigation of the legal malpractice case, we compared, on a very large screen, all the discrepancies between her disclosures to providers and her deposition testimony. She was shocked, and so was her lawyer handling the case on a contingency fee!
As a party, and sometimes as a witness, it’s important to seek counsel soon after a claim arises. Your lawyer will help you stay truthful, and avoid exaggerations, whether your claim is for personal injuries, legal malpractice, or other types of claims. If you are a party-lawyer, you should know better and, you must admit to yourself that you cannot outsmart the other side or else find yourself in a heap of hot water in front of a jury and the State Bar. And, for Heaven’s sake, do not represent yourself. Retain counsel as soon as a potential claim or grievance becomes known. Many claims can be repaired before resulting in litigation, and many grievances can be avoided by addressing the client’s complaints ahead of time. Sticking your head in the sand and playing ostrich is the worst thing you can do.
