I cover litigation between firms and governments and I’ve been involved in a few dustups myself. As we approach the holidays, I figured it would be fun to share what I’ve learned in the hope that some of you can learn from my mistakes and avoid making your own. So whether you are in court against your cheating spouse, nasty neighbor, ex-employer, or managing a litigation for your firm, here is my list of annoying things that unscrupulous attorneys do to win.
By the way, before we start, a word on arbitration. Arbitration is presented as a faster, cheaper way to get to a decision. It is generally not appreciably either. What it does is provide protection for the defendant, generally a large company with deep pockets typically to ensure against a huge judgment. So, as a company you like arbitration, as an individual not so much, and if someone is demanding arbitration and they aren’t a company, you should figure they are anticipating cheating you.
A comment on contracts. This can get around most of the problems you’ll ever have with a contract. If both sides agree on what to do then a contract is largely redundant and will stand. If either side doesn’t agree on what to do then the contract will likely fail and you’ll end up in court. So, something to noodle on over the holidays, contracts work best when they are redundant. Before signing one ask yourself if you or they would do what you are agreeing to anyway. If that is not the case you might have to consider that you could end up in court and you need to draw the contract up accordingly.
Legal dirty tricks
If anyone ever convinced you that attorneys don’t lie, take that memory out of your head and realize that they often do. They aren’t under oath and they can certainly say whatever comes into their heads. This means you need to be well-versed in the facts and, particularly in a deposition or during testimony be aware they are going to try really hard to trick you into saying something that isn’t true but will benefit their case.
If they make a statement that is critical make sure you research your response before responding, and if you don’t remember that is a valid response. Also be aware that not only do attorneys often tell clients what they want to hear, but we selectively listen and often hear only what we want to hear. This can make litigation really expensive because we won’t recognize that our position is untenable until after wasting thousands in attorney fees.
This goes to contracts. Taking contract clauses out of context, reading them without punctuation, inserting lines that aren’t in the agreement, and making clauses up are all tactics I’ve seen used in negotiations. Make sure you read along with the attorney and before entering a negotiation you know every major clause nearly by heart. You need to have a good grasp of the case as well so you understand the core elements of the case otherwise you can get maneuvered into agreeing to items that seem minor, but turn out to be pivotal to your effort.