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Evidentiary Surprises and Ethical Dilemmas

By Sara L. Shudofsky

Surprises can add spice to your life and your practice. But rarely will a surprise be welcome when you are poised to begin the trial, put your witness on the stand, or wrap up your client’s case. Unexpected evidentiary challenges that feature an ethical dimension can be particularly vexing. Counsel would be wise to consider various preventive steps to minimize the likelihood of having to face ethical dilemmas associated with evidentiary surprises in the first place. Here are some guidelines that should be on the checklist.

Give Clear Directives to the Client about Sharing Everything with Counsel
Effective communication between counsel and client is critical to the effective presentation of the client’s case and relevant to avoiding quagmires involving inaccurate deposition testimony or the last-minute discovery of documents. Taking the time to impress upon the client the need to be forthcoming about the facts and the available documentation seems like an obvious rule of thumb, but in the hectic pace of litigation, it is a guiding principle that can, remarkably, be overlooked. The lawyer litigating a civil case should convey emphatically to the client that she needs to hear absolutely everything about the events giving rise to the litigation. Much of the burden will fall on the lawyer to ask the questions necessary to drill down into the facts. But while there is certainly a premium on thorough exploration of the issues by counsel, clients need to know that the burden is also affirmatively on them to be thorough and complete in disclosing the “bad” as well as the “good” facts and ensuring the identification and availability of all relevant documents. Savvy consumers of litigation services who have been through past wars may be aware of the general maxim that witnesses should not do the work of lawyers—meaning that if the lawyers do not ask for the information, the witnesses should not volunteer it.

Clients may apply a similar principle to their relationships with their own lawyers, whether benignly or with the calculated design of seeing whether they will be able to get away with suppressing certain information. Clients are people, too, and we are all uncomfortable admitting damaging or embarrassing facts. Or clients simply may not understand the importance of certain facts to the story, or the likelihood that withholding the information will undercut their credibility regarding more critical matters. Whatever the client’s psychology and however you grade her overall candor in providing information, you should be clear and direct about the need for full disclosure.

Participate Directly in Identifying the Universe of Documents
When hard copies of documents predominate, counsel must take a direct role in ensuring that all relevant pieces of paper are identified for production purposes. Mere reliance on in-house counsel or others at the client company will not ensure that discovery obligations are met and avert belated unearthing of relevant documents in the twilight of the litigation. Further, in today’s electronic world, where document production is no longer about warehouses stacked with boxes of paper, you need to develop a working knowledge of the client’s computer systems so that you are in a position to ask the right questions and fully understand the answers. This means, among other things, understanding the client’s systems for storage and retention. Many volumes have been written on this subject, but for these purposes, document production has to be personal and hands-on to guard against the messy consequences of discovering new sources of information at the eleventh hour.

Take the Necessary Time, Even if the Case Is in a Hurry
Litigation can sometimes take on a life of its own and move at a breakneck pace. Particularly when you have been retained by a client to seek a temporary restraining order or when your client is on the receiving end of such an application, events have a way of overtaking even the most experienced lawyer. When you are drafting a moving declaration in support of immediate injunctive relief or working to beat back the other side’s application for such relief, a natural tendency is to run with the facts as they are being spoon-fed to you because the reality is that you lack the luxury of spending the hours needed to verify them. Even then, however, it is critical that you take the necessary time within the expedited framework. You can still ask the questions that must be asked, nail down the essential details, and satisfy yourself that you are getting all the critical facts. Take the time you need even when time is of the essence.

Be Clear about the Meaning of “I Don’t Recall”
Lawyers appropriately tell their clients in preparation for a deposition or trial not to speculate about matters not within their knowledge. That kind of instruction is obviously important because people have a natural tendency to want to satisfy the questioner with some kind of answer. And speculation may very easily come to the witness, who, after all, will have reasonable guesses as to what happened at that meeting or what the decision maker was thinking when he fired that employee. Given these pitfalls, it is appropriate for counsel to make a clear distinction between what the witness knows and can give testimony about, and what the witness does not remember and has no basis for discussion. “I don’t recall” is often the most accurate answer. At the same time, witnesses should understand that an incomplete or disjointed memory of an event or only a whiff of a memory still constitutes a “recollection.” It is not fair game for a witness who has only a vague memory of an event that is the subject of questioning to answer that he does not recall that event. The party taking the deposition, or cross-examining at trial, has the right to hear the witness articulate what precisely he does remember about the subject of the questioning, even if that recollection is hazy or fragmented.

Remember That, at Some Point, It Becomes about You
Lawyers are focused on the zealous representation of their clients, and hopefully ethical issues will seldom rear their heads. But, there may be times when your focus should shift in appropriate measure to your own ethical obligations. Do not be afraid to engage in those considerations, and do not wait until late in the day to do so.

Consult with Wise Colleagues Early and Often
It is so often true, and in no context more than this one: Do not grapple with these thorny issues or make a final determination about how to proceed alone. Consult with colleagues you trust and work through the issues with them. Chances are that someone with whom you practice has been through this before, and in any event you will invariably profit from a seasoned colleague’s sound judgment and counsel. You might also want to think about developing a relationship with an outside ethics expert. Such a specialist can offer extremely valuable, on-the-spot guidance and insight regarding the various issues and give you the comfort you need to make the necessary choices. Ultimately, your reputation may be on the line, and you will need to weigh very carefully how to fulfill your duties to your client while simultaneously meeting your own obligations as an officer of the court.

Keywords: litigation, trial tips, evidence, evidentiary challenges, ethics

Sara L. Shudofsky practices with Spears & Imes LLP in New York City.

This article was excerpted from a longer one that appeared in Litigation, Volume 34, Number 3, Spring 2008.


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