Credibility: A Lawyer’s Greatest Currency
By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not, in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
I was confronted by two very different situations this past week that reinforced a plain truth that lawyers often forget. Credibility is their greatest currency.
Anyone who has managed litigation will have many people tell them the exact same thing: “You never know what a jury is going to do.”
The most senior and accomplished attorney will add to that:
“You know. I have tried many cases that I thought I was going to lose that I won. And, there were other cases that I thought, for sure, that I was going to win that I lost.”
And we have had cases tried that we lost, and every time an attorney loses a case, and immediately, they want to pole the jury to figure out exactly what had happened. “How did I lose?”
So, every time a jury gets poled as to why they found what they had found, they give only one answer. “We found the other witness more credible. We found your witness less credible.”
Incredible.
Credibility is a lawyer’s greatest currency.
Situation one. We have a case over a property boundary dispute that is heading to trial. The opposing side files a motion in limine to have the judge allow the jury to visit the property. Our counsel opposes this as being very expensive and inefficient.
I questioned the opposition to this motion. The reason I did was, because we have had been on the exact opposite side of this kind of motion, and if we really believe in our position, we should then not be afraid to look at the property which is at the center of the dispute.
The attorney replied that the reason this was being opposed is because of a valid fear that opposing counsel would try to play some sort of trick with the jury, and have stakes placed in certain areas to bolster their position.
The second reason that had been provided was the one that troubled me. He said that it would be to our advantage if the jury gets confused.
This was troubling because I look at a trial through the prisms of the opening statement and the closing argument. In addition to jury instructions that I find to be very important, the opening statement and closing argument are always my guideposts.
Opening statements is the time in the case that you introduce the case to the jury and describe what the evidence will show. But, when I think about saying what the evidence will show, I think about this in terms of the promises I can make.
“I am not the finder of facts. You, the jury, are. If I keep my promises, I think you should find for my client. However, if I do not, I want you to find for the other side. I can tell you that the promises I am making are air tight, rock solid, and iron clad. And, I am so confident that I can keep my promises, I can invite opposing counsel to stand up and tell you folks that I can’t keep them.”
The closing argument is what it is. It is the time to make the case for your client. I believe it should always be prefaced this way:
“Ladies and Gentlemen. This is my favorite case to try. My favorite case. It is not because of fancy experts or sexy issues. It is because I can rely on the common sense of the jury. Whenever I can rely on the common sense of the jury, juries always do the right thing!”
If you put these two things together; how I explained the opening statement and closing argument, this is the crucial point I want to make here:
We all say that everyone has a right to his or her own opinion. However, this is usually the unfortunate part. People want you to have the right to your own opinion. However, they want you to accept their version of facts, and if you do, you are only logically able to accept their opinion. Therefore, in reality, you have no right to your own opinion.
Here is the time to tell the jury why a trial is unique. “You are both the finder of the facts, and you, as a jury, have a collective right to your own opinion.”
Think about this for a moment. If credibility is a lawyer’s greatest currency, the best way to establish your own credibility is by showing the people you want to find you credible that first, of course, you have conviction in what you are saying, and second, the more important part, you have absolute faith and trust in the jury.
In other words, here is an absolute truth. If you tell a person that you completely trust that person, you are more likely to get trust back. If you tell a person that you do not trust them at all, the chances are significant that the other person will not trust you much either. If you do not have trust, you have little chance at obtaining credibility.
Here is the second situation. We had a mediation in a hotly disputed case. Counsel provided for my review a twenty five page draft of the mediation submission. The brief was very well written, but how it was laid out was where I had a significant problem.
The brief started out with a five page summary of the complaint. The next five pages was devoted to a summary of the history of the proceedings. After that, the brief discussed the legal principles that essentially guide each of the causes of actions. It was only when I got to page twenty one where I finally found the discussion as to why our position was the superior position to that of our opposing counsel.
I had the fortunate opportunity to spend a summer during law school to do an internship for a Federal Court Judge in the Western District of Pennsylvania, the Honorable Gustave Diamond. He had one rule that made the greatest impression on me. His rule was that if he did not know why somebody thinks he or she should win their motion in the first page, they lost. If somebody has a very strong position, he or she does not need to hide it somewhere in a paragraph on page fifteen.
I made this point to the attorney drafting the mediation submission, and we, together, redrafted the beginning. We explained to the mediator that while we have laid out the case in detail, here is a summary – with detailed bullet points – why we were correct on the facts, why we were correct on the law, why we were correct on liability, and why we were correct on damages.
It was all crystal clear, and said in two pages. It set the tone that we were going to approach this with absolute conviction and certainty. But more importantly, if the other side was providing a mediation brief that had its position on page eighteen, you can guess which side the mediator will find more credible.
This all sounds easy. However, there is one thing you need to be mindful. Credibility is a tricky thing, especially with a jury. You may be found to be 98% credible, but if you are not credible 2% of the time, all the chips you won with the 98% of credibility you achieved goes all down the drain.
Not very incredible at all.
Credibility is a lawyer’s greatest currency.
Steven has served as the Chair of the Dispute Resolution Committee of the TIPS Section of the ABA from 2010-2011 as well as the Co- Chair of the Litigation Section’s Professional Liability Committee from 1999 to 2002.
Steve has spoken and written both on managing professional liability actions and negotiation techniques for the Professional Liability Underwriting Society, Practicing Law Institute, Corporate Counsel of America, and the American Bar Association. He is a 1986 graduate of the University of Pittsburgh School of Law.