Tag Archive for: honesty

3 REASONS HONEST WITNESSES TELL FALSE STORIES

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Many cases turn on the recollection of “percipient” or “occurrence” witnesses. These are people who used their senses to see or hear relevant evidence. Less commonly, they might have smelled, touched,   or tasted something. Percipient witnesses contrast with expert witnesses, who are usually engaged in anticipation of or during litigation. Expert witnesses rely on evidence which has been submitted to them so they can render an opinion based on their education and experience. They need to record what they relied on, but don’t have a recollection of the events of the case as they occurred.
Honesty Isn’t the Issue
In his 2021 book Why The Innocent Plead Guilty And The Guilty Go Free/ And Other Paradoxes Of Our Broken Legal System, federal district judge Jed S. Rakoff explains why eyewitness testimony in criminal cases is unreliable. Those same reasons apply to percipient witnesses in civil cases.

1)The witness’s own level of stress at the time of the incident affects and can impair their recollection.

2)The inherent human tendency over time is to add embellishments to enhance the completeness of the recollection or simply to accord with preexisting biases.

3) There is a wide range among people’s ability to retrieve memories of events that lasted only a short time.

It’s An Old Story
In the celebrated 1950 film Rashomon, multiple percipient witnesses tell wildly different versions of the same event. Today, the well-known unreliability of eyewitnesses is sometimes called the Rashomon Effect.

What to Do?
A witness may really believe the story that witness is telling—and that story could hurt your case a lot. It’s hard to predict how the trier of fact will view conflicting evidence. Witness unreliability is one reason why going to trial is such a gamble. Recognizing this paradigm should prompt you to choose mediation  to settle sooner rather than later.

ONE THING LIARS ARE REALLY GOOD AT

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While not every liar is really good at lying, many are. In fact, they are so good, that the trier of fact—be that jury or judge—often find them to be credible, more credible than your evidence.

Humans are actually poor judges of each other’s honesty. While we think we can look someone in the eye or study their body language, statistically these clues are worthless. As mentioned in another post, author Malcolm Gladwell in his book How to Talk to Strangers demonstrates how bad we are at interpreting each other’s thoughts based on observable clues.

Good liars will swear an oath to tell the truth and then brazenly lie. The trier of fact’s ability to judge a witness’ honesty is unreliable. When cases turn on s/he said—s/he said situations, going to trial is a big gamble.

Mediation is the better choice.

Settlement Ethics

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Ethics are the moral principles that govern behavior. Every workers compensation professional has ethical rules to follow. For attorneys, these are spelled out in Codes of Professional Responsibility, statutes and sometimes case law. Despite some differences among the states, the basic principles governing settlement ethics are mostly the same

Duty to Communicate to the Client
Lawyers must keep clients reasonably informed about significant developments (CA Rule of Professional Conduct 3-500). CA Rule 3-510 tells lawyers to promptly communicate the specifics of a written settlement offer. In other words, a California lawyer need only pass along a verbal settlement offer if the lawyer deems the offer significant. The lesson for negotiators is to make all settlement offers in writing to ensure the client learns about them. The bonus: a written offer avoids confusion about the offer’s terms.

In an unpublished Texas case, Grillo v. Harris Hospital, a former client sued for legal malpractice damages for the alleged failure to communicate a settlement offer. The suit claimed that the attorney’s failure to convey a structured settlement offer resulted in the plaintiff’s loss of public benefits worth millions of dollars. The law firm paid a $1.6M settlement.

Duty of Competence
A lawyer must be competent, defined as having the diligence, learning and skill, and mental, emotional and physical ability to practice (CA Rule of Professional Conduct 3-110). That means the lawyer should be conversant with all the factors impacting settlement, including access to public benefits and tax. If the lawyer is not expert in a subject, the lawyer can notify the client to obtain such an expert.

Duty of Honesty
Lawyers must act honestly in litigation, including settlement negotiations. California Business and Professions Code Section 6068(d) requires an attorney to “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…“ Business & Professions Code 6128 imposes misdemeanor criminal liability on a lawyer who intends “to deceive the court or any party.” The maximum penalty is a six-month jail sentence, a fine up to $2,500 or both.