The litigation process is a way to discover the truth of a situation and apply the law to determine if the plaintiff’s legal claims are valid and if so, whether damages should be awarded or actions by a defendant should be ordered. How your client perceives the truth could be very different from how a judge or jury looking at evidence could perceive it.
Get Over Yourself and Get to the Truth
You and your client will need to divorce your story and embrace the truth, whether that truth helps or hurts your chances of success. You need to look into the past and find a way to move forward to best serve your client.
Here are some issues you need to address.
- If your client’s testimony, or testimony of witnesses, is a key to success, you and your client need to understand that our brains are not unblinking cameras but fallible organs. As an article in Psychology Today points out, neuroscientists have established that when we remember something, we reconstruct the event, reassembling it from traces across the brain. We also suppress memories we find painful or damaging to our self-esteem. As a result, memory is unreliable and adaptive, reshaping itself to accommodate the situations we find ourselves in.
- A witness may recall perfectly the facts of a situation, but may do so in a way that may not bolster the person’s credibility. If the person is nervous, afraid or stressed out, he or she may be a “bad witness” and not provide any help. The other party, with its own witnesses and their defective memories, may contradict your client’s witnesses. What one document states may be contradicted by another.
- There may be technical or procedural problems preventing the use of witness testimony or documentary evidence that would help support your client’s version of the truth.
You and your client, when negotiating and mediating, need to step back and divorce yourself from your story, the narrative that makes your claims or defenses so compelling and embrace the truth, as it can actually be proven if the case is tried. Wrapping yourself in the blanket of your story, making you blind and deaf to objective facts that can be proven, will only end in ultimate failure.
The higher the stakes in the case, the higher the risk a party (and his or her attorney) may want to engage in wishful thinking and fantasize about all the good stuff that accompanies a decisively favorable settlement or verdict. But the higher the stakes, the greater the need to stay grounded. Cases need to based on a reality that can be established at trial, not on wishful thinking.