Tag: civil procedure

Excerpt from my Civil Procedure book:

The means employed by litigators to achieve victory for their clients regularly involve manipulating people and the flow of information in order to present their client’s positions as persuasively and favorably as possible. This manipulation may involve any or all of the following general techniques:

• not disclosing evidence that could be damaging to the client or helpful to an opposing party
• not disclosing persuasive legal precedents that could be damaging to the client
• undermining or deflating persuasive evidence and precedents that are damaging to the client and are introduced by opposing counsel, by such means as upsetting or discrediting honest and reliable witnesses or by burying adverse evidence under mounds of obfuscating evidentiary debris
• overemphasizing and present out of context evidence and precedents that appear favorable to the client
• pressuring or cajoling witnesses, jurors, and judges into adoption views that support the client’s position
• deceiving opposing counsel and parties about the weaknesses of the client’s case and the vulnerabilities of the opposing party and counsel that have nothing to do with the merits of a given dispute by such means as intimidating an anxious opponent, spending a poor opponent into submission, or “soaking” in settlement an opponent who has public image problems or who for other reasons cannot endure the risk and public exposure of a trial.

None of these techniques is illegal or violates the letter of the ethical rules of the profession. Indeed, the refusal to resort to at least some of these devices may be construed as a breach of an attorney’s obligation “to represent his client zealously within the bounds of the law.”