Tuesday, December 17, 2013

Commandment #7--Don't "Fudge" the Facts or the Law

#7—Thou shalt not fudge the facts or the law and shalt concede harmful facts and harmful law.

You can present the facts persuasively, but you should never try to sway the court by “fudging” the facts.  If a deponent said one thing in a deposition, do not extrapolate to make the deponent say something different.  For example, if the defendant testified that he is not sure if he checked his rear-view mirrors before changing lanes, do not suggest to the court that the defendant admitted he did not check his mirrors.  That is not what the defendant said.  Your adversary will almost certainly point this out, and you will lose credibility.

Similarly, every fact should be supported by a citation to evidence in the record, such as deposition transcripts, discovery responses, and affidavits.  You should not include fact statements for which you have no record support.  Offering “facts” for which you have no admissible evidence is equivalent to misrepresenting the facts. 

You also should never mis-cite authority or misrepresent the status of the law to the court.  For example, it is inappropriate to suggest to the court that “one not in privity of contract with another lacks standing to assert any claims arising from violations of the contract." Dominic v. Eurocar Classics, 310 Ga. App. 825, 828, 714 S.E.2d 388, 391 (2011).  While this statement is a direct quote from Dominic, it is not a complete representation of the law.  Third party beneficiaries also have standing to sue for breach of contract under O.C.G.A. § 9-2-20(b).  Avoid the temptation to cherry-pick quotes or misrepresent the holding or reasoning of a case.  Attempting to bolster your case in this way will backfire.

Never try to hide unfavorable facts or law.  A lawyer’s duty of candor to the court should be enough to dissuade you from doing so.  In many cases, however, you might actually help yourself by acknowledging weaknesses in your argument before the opposing party has the opportunity to tell the court about those weaknesses.  By acknowledging specific weaknesses, you give yourself the opportunity to explain why unfavorable facts or law do not affect the outcome of your case. An unfavorable case may, for example, be factually distinguishable.  You might be able to argue that an unhelpful statute doesn’t apply given the facts of your case or that public policy dictates a different result from that reached in a prior, similar case.

Good legal writers use the facts and law to their advantage in a way that is accurate and truthful. 

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