Practical Advice

Tips from the Top

Welcome to Tips from the Top, where we feature anecdotes and experiences that you can learn from.

Think Before You Plead

I’ve been involved recently in a case in which several plaintiffs allege lost income, but want to rely solely on their testimony to establish their income before and after the events in question. There are two claims involved in this case – one statutory that requires no evidence of damages, and one tort claim that does. The plaintiffs refused to produce tax returns or even W-2s, and pled the Fifth at their depositions when asked about the preparation and contents of their tax returns.

I moved to preclude them from presenting evidence of economic losses. The judge has now ordered them to produce their tax returns and answer questions about them at deposition or they will be barred from introducing damages evidence at trial. The judge has also informed counsel that any plaintiff who testifies at trial about income exceeding that which is reported on tax returns will be reported to the IRS and the Department of Justice. Some plaintiffs have produced their returns and testified about them, revealing a longstanding pattern and practice of deliberately and willfully underreporting, while others have decided to forego those claims.

The moral of this story? Think about what evidence you need at trial before you determine what claims you assert on behalf of your clients. Failure to do so can even land your clients in jail.

Silence May Not Be Golden

I was scheduled to take an employment discrimination case to trial right after Labor Day. The week before, we learned that the human resources representative involved in handling the situation which gave rise to the lawsuit was out on medical leave of absence, and would not be able to testify because of her underlying medical condition. She had been deposed by the plaintiff, but we had asked her no questions at the deposition. Needless to say, her deposition testimony did not read well for purposes of a direct examination at trial. We were lucky – opposing counsel agreed to a motion to continue the trial, and the judge granted it, but it made me question whether my usual and customary practice of asking my own key witnesses no questions at depositions conducted by plaintiff’s counsel is a good one. Had the judge not continued the case, I would have been forced to introduce testimony that did not read well stylistically from a witness critical to my case. While this situation certainly was unusual, I may consider asking a similarly situated witness a few concise questions at deposition for purposes of making sure that I have testimony that reads the way I want it to at trial in the event that the witness is not available due to death, illness, or other factors outside of my control.

Trust Your Instincts

A friend of mine shared with me a recent trial experience that imparts a valuable lesson. He has tried hundreds of cases over the past twenty years, accumulating a remarkable track record in the process and honing his trial instincts to a fine point.

While representing a major corporation recently, he tried a case in which he intended to call a mid-level manager of minimal importance to the facts of the case to testify. He knew she was a good witness and he wanted to have all testimony from everyone who had any involvement with the transaction at issue in the litigation appear before the jury. That way, the jury would know the corporation had nothing to hide. The jury knew of her existence through documents and testimony of other witnesses. But the client objected to bringing her in to testify, saying it would be an unnecessary expense because she was located out of state.

Against his better judgment, my friend deferred to his client’s recommendation. Four hours into their deliberations, the jury requested that they be provided with a copy of this employee’s deposition testimony! A day later, they returned a verdict against his client. Though he does not know the exact impact that her testimony would have made, my friend remains convinced that he should have trusted his instincts and called the employee in spite of his client’s reluctance to do so.

The Right Hand and the Left Hand

Several years ago, I represented a major retailer in a case brought against it by a customer who claimed he had been injured in one of their stores. My client and I suspected that the plaintiff was malingering and/or exaggerating the degree of his disability. Unbeknownst to me, my client engaged a private investigator to conduct surveillance of the plaintiff. The investigator obtained some wonderful video footage of this man playing pool and doing other things that showed he was much more physically capable than he claimed to be. This footage looked like it was going to make the case – until I learned that the investigator was the other pool player and had encouraged the plaintiff to play pool! This one piece of information turned a valuable piece of evidence into dross. We had to disclose its existence to the other side, but could not use it at trial because of the investigator's wrongdoing. The moral of the story? Make sure that the right hand knows what the left is doing – if your client is at all inclined to utilize the services of a private investigator, make sure that the client manages the investigator.