Credibility is at the top of factors affecting the outcome in litigation. Generally whichever side first loses credibility will most likely lose the case. Thus, maintaining the highest level of credibility on all fronts is essential.
This post centers on the following two important aspects of credibility:
First, the integrity and honesty of a lawyer before the court (and before the court clerks, staff, etc.) are absolutely essential, contrary to the way Hollywood movies often otherwise portray lawyers. If the lawyer has no credibility, all is lost in the litigation in my opinion. These crucial elements also remind me of Oscar Wilde’s often repeated line: ‘No man is rich enough to buy back his past.’;
Second, documents subject to litigation must be credible. Often, litigation involving disputed documents (such as a trust, a Will, a contract, etc.) are not based on easy open-and-shut issues. If the issues are otherwise clearcut, the parties typically need not spend the time and money to push the matter up before a court.
Therefore, litigation issues centering on a document are generally novel, creative, gray areas. The uniqueness of these issues is sometimes referred to by the court as a ‘case of first impression’, meaning the issue is not one the courts have been called upon to address in the past. The judge (or the jury) must conclude whether the asserted deficiencies in the document are sufficient to uphold the attacking party’s claims.
The attacking party’s strategy first will be to find any possible chinks in the document, so as to begin chipping away, repeatedly like a drone, at the credibility of the document. Particularly for issues of first impression, the attacking party will use whatever chinks exist — whether or not directly related to the larger issues — merely to get a foot in the door of the court in order thereafter to hammer out the argument for the novel result they are seeking.
Getting a foot in the courtroom door (thus, getting the judge’s ear) is much easier if there are various omissions, errors, or substantive typos in the document that provide leverage to lay a foundation for putting forth the larger, novel argument. More particularly, a strategy of casting doubt on the credibility of the document itself and raising concerns about its ability to stand up under close examination as to any unclear or mutually ambiguous provisions.
The credibility of the document is a reason to obtain the best quality documents possible. Merely taking the position that a document is OK, or is good enough to cover most of the necessary provisions, often merely paves the way for a much weaker position later if the document is ever put to the test.