Archive for March, 2011

Why Should I Tell My Lawyer Everything? The Case of the Likely to Lose Liar

Why telling your lawyer the truth is a very good idea.

Here’s a client guide I recently posted on Avvo.com concerning the importance of making a full disclosure to your lawyer:

Often, clients feel that they have to present the facts to their lawyer in the best possible light, or the attorney might not want to represent them. Your best bet is to give your lawyer ALL the facts. Here’s why:
1.  TRUST.

The attorney-client relationship is primarily based on trust. It goes BOTH ways. If you are concerned about your lawyer’s loyalty or motivation, you probably shouldn’t hire him or her. If you’d like to see your attorney become truly unmotivated, lie to him or withhold evidence and watch what happens when the truth comes out …
2.  TRUTH = SUCCESS.

Most litigation is not won or lost based upon the merits of the claim; it’s won or lost based upon whom the jury believes. Document trails, witness statements, photographic evidence, scientific evidence, are all support structures for the ultimate issue — who’s lying, and who’s not. If you initiate your relationship without disclosing all you know or strategically withholding evidence, the lawyer will build the case on that structure. If it’s an inaccurate or untruthful “foundation”, the case becomes a house of cards, and you’re sure to lose.
3.  YOU’LL HOGTIE YOUR LAWYER WITH A LIE OR INCORRECT FACTS.

Even the most skilled advocate is only as good as the case his client gives him. If a lawyer knows about a problem early in the case, a good lawyer will know how to deal with it or recast evidence or strategy to minimize the “blemish”. If he doesn’t know the problem before it shows up during the case, that little “blemish” will overwhelm the rest of his evidence. Trust me, I’ve seen it happen, and often on the most insignificant of facts (like Furman lying about racial bias, which had nothing to do with the OJ Simpson investigation).
4.  JURIES LOVE FULL DISCLOSURE.

Abraham Lincoln once said that if he were to be accepted as President, he would have to be accepted “warts and all.” It’s not coincidental that while he was certainly controversial as President, he’s gone down in history as one of the most beloved. Juries are no different; they want to see the entire person, not just what’s been carefully sculpted and scripted for trial. A few “warts” tend to humanize someone seeking justice. A perfectly groomed candidate becomes suspect.
5.  YOU’LL FEEL BETTER.

Do you remember when you were kid and threw out a fib, and spent the rest of the day worrying about whether you’d be caught? A courtroom’s far worse than your parent’s living room. The constant fear of the strategically omitted fact or outright lie’s disclosure will affect your testimony and your entire case. It’s better to have it disclosed early, when your skilled lawyer will know how to deal with it (See Section 3, above).
6. YOUR LIE WILL BE DISCOVERED — THAT’S WHY THEY CALL IT “DISCOVERY”.

Civil and criminal cases require that lawyers exchange information about their cases in a process called “discovery”. In my field, civil practice, discovery is very extensive, with subpoenas, written questions, document requests, and lengthy depositions, all designed to ensure that there are no surprises at trial. Everyone leaves some kind of paper trail, especially someone who’s been untruthful. Don’t think you can hide a secret in civil litigation; they inevitably come out, whether it’s through finding a contradictory business record; a subpoena of your email records or Facebook postings (and don’t think THAT doesn’t happen!), or just your squirming in the witness chair when asked just the right question.

7. A COVER-UP CAN BE MORE POWERFUL THAN A TRUTHFUL ADMISSION — REMEMBER WATERGATE?

Although I wasn’t his biggest fan, Richard Nixon was an innovative and creative president. His domestic agenda was actually quite literal; the Environmental Protection Agency, Planned Parenthood, and many extensions of Lyndon Johnson’s “New Society” were actually enacted on Nixon’s watch. He was re-elected in a landslide. What brought him down? It wasn’t the “third rate” burglary; it was the COVER-UP. A lie becomes magnified by the series of lies a witness or party has to tell to keep the lie secret. In that sense, it’s far more powerful against you than early disclosure of the truth should be.
8.  A DAMAGING TRUTH MAY ACTUALLY INCREASE YOUR SETTLEMENT.

One of the greatest problems with our justice system is the delay involved in getting a case to court. Skilled defense lawyers can tell early on whether a case is legitimate, and they pay people who present honestly and truthfully faster and more than people who don’t. An example: I had a client who had a drug problem after a serious injury. If we’d tried to hide it, the defense would have pounded his character at trial. Instead, we freely admitted the problem; described his detoxification and the “sobering up” process in intimate detail in his deposition; and brought forth members of his family to describe how difficult it was for him to quit and how hard he’d worked to stay straight. The result; the Defendants ended up settling the case for over $4 million, fearful that the jury would blame THEM for causing the addiction. And the case settled far faster.

MALIS|LAW Settles Client’s Claim for $575,000.00: The Case of the Careless Cleaner

Failure to post warning signs yields $575,000 for nursing home employee

In a recent settlement, MALIS|LAW obtained $575,000 for a client who had seriously injured her low back after falling on a wet floor in a nursing home, after receiving a $262,500 settlement from the home for workers’ compensation benefits.

Our client, a 41 year old nurse’s aid, was in the process of helping a patient when she entered a bathroom which connected the patient’s room with another nursing home patient. The floor had been left wet by a cleaner working for a contractor hired by the home to do its housekeeping. She slipped and fell, badly injuring her lumbar spine.

MALIS|LAW was able to demonstrate that the client was permanently totally disabled from her injury, and that the accident happened because a cleaner failed to follow the cleaning company’s protocols and post warning signs in every room where wet-mopping was conducted. In discovery, we obtained contradictory testimony from the cleaning company’s manager (who insisted that the signs were required, and contradicted his own testimony early in the deposition and admitted that they hadn’t been posted); the cleaning company supervisor (who stated the signs weren’t present in the bathroom, but contended that they were placed in front of the hallway doors, which was sufficient under the company’s policy); and the actual cleaner (who stated that signs were necessary, and that a warning sign had been placed in the bathroom prior to our client’s fall). These contradictions were sufficient to outweigh a comment by our client in deposition that she “didn’t notice” whether there were signs in the hallway adjoining the rooms, but not the bathroom, prior to the accident.

Return top

FAQs, Interesting News and Law-Related Rants

Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.