For those of you who follow my monthly columns, you know that most of my topics are related to family law practice and procedure. This month however, the topic is one, which transcends family law practice. Legal papers submitted to the court are, and should be, drafted by attorneys. In civil cases, perhaps the most important document is the initial complaint. While it is certainly true that legal theories change over time, factual events should not.
It is very important that clients review attorney prepared declarations and papers carefully to make sure that they are entirely accurate. If they are not, it can be problematic later in the litigation.
A legal tool, which I can often use to my advantage, is the principle of “judicial admission.” Essentially, once a party takes a factual position in litigation, it becomes a judicial admission, which may not be contradicted. If a litigant isn’t careful to tell the truth, these admissions can snowball and preclude a party from offering contrary evidence later. One lie often leads to another and thus, a party’s credibility can be easily shattered when one starts down the road with just a single lie or fabrication.
I cannot tell you how many depositions I have taken where the attorney representing the witness has not carefully reviewed his client’s declarations. Statements made in declarations are often forgotten by the deponent, and when the statements are fabrications, they frequently are denied to some extent by the witness at deposition. This provides an excellent opportunity to destroy the credibility of the witness so that nothing should be believed at the time of trial.
No matter which lawyer you ultimately retain, please spend the extra time to make sure that the factual assertions you are making are 100 percent accurate. While you may think that you are gaining an advantage by fabricating testimony, you may be very unpleasantly surprised later when you find out how fatal to your case your lies have turned out to be.
For all of your litigation and family law needs, contact the Law Offices of Richard A. Marcus at 661-257-8877.