Play the Hand You’re Dealt

Professionals must play the hand they’re dealt. We can’t pull an ace from our sleeve. We can’t change the facts or the witnesses or the evidence. Many attorneys welcome the challenge of overcoming obstacles within the confines of the ethical code, which can make for a more satisfying result. (Moreover, there is a certain pressure in handling the slam-dunk case because a win is expected and a loss could be unforgivable). Unfortunately, however, some attorneys opt to break the rules when confronted with difficulty. Consider the following examples.

Model Rule of Professional Conduct 3.4  instructs lawyers not to falsify evidence, counsel or assist a witness to testify falsely.  In a recent case out of San Antonio Texas, the state appeals court upheld a $23,000 sanction against an attorney for a direct violation of that rule.  The underlying dispute involved a premises liability action.  According to the court’s opinion, the attorney deleted parts of a recorded witness statement and instructed the witness to change her story during the recorded interview to better support his liability defense.  After tampering with the witness’ statement, the attorney produced a transcript of the statement and represented that it was a true and correct version of the statement.  Subsequently opposing counsel requested the original recording of the statement (kudos to counsel) and the truth was revealed.

In another matter, also pending in Texas, proceedings came to a screeching halt when it was discovered that a key piece of evidence had been falsified.  Attorneys were forced to abandon a $1.3 billion trade secrets lawsuit midway through trial when it was uncovered on cross-examination that a cash flow analysis document had been “faked.”  While preparing for trial, counsel for defendants began to question an image inserted into the spreadsheet with a mysterious label indicating it was “Figure 11”.  When they were unable to find figures 1-10 some internet searching revealed that the image was taken from a research paper written in 2012 and the image could not have been created years earlier as alleged. After the close of testimony, defendants immediately moved for sanctions and plaintiff promptly dismissed the case with prejudice.

A key to avoid a similar fate may be to address potential weaknesses early and often.  Open communication with clients about expectations and possible outcomes can eliminate pressure to achieve unrealistic results.  Carefully and thoroughly review evidence that is particularly helpful and that which is harmful to your case.  Anticipating potential areas for cross-examination on key evidence and discussing it with the client can help to identify potential pitfalls and areas that need explanation.  Clients engage professionals to play the hand they’re dealt, not to cheat the system and risk additional exposure.