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.

50 SHADES OF NEGOTIATION GREY

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No, this post doesn’t qualify as erotica. It’s about the ability to see nuance. Most cases are not black-and-white, no-doubt-about-it, situations. Rather, there are shades of grey. If this were an open-and-shut case, chances are that claim would not be in dispute.
It’s Part of Empathy
Being able to see all the facets of an issue enhances your ability to negotiate a settlement. You can best meet your opponent’s arguments if you take the time to put yourself in that person’s shoes long enough to figure out what those arguments are. Then you can best meet them.

While it is appropriate to research all the facts and law that help predict an outcome,  when researchers choose to dismiss negative findings, they will not be able to constructively negotiate. Only interpreting findings as favorable, a mindset known as confirmation bias, prolongs conflict.

When initial research reveals negative information, the impulse may be to just keep digging. This attitude manifests itself in the actions of litigators who, for example, keep designating treaters and experts in the hope that somebody will back up their position. An analogy might be to a company which continually engages in research and development, but never actually brings a product to market. That’s not what success looks like.

Grey Is Stressful
Uncertainty generates stress. Parties in mediation sometimes tell me how relieved they are that the dispute is over, even when they got a result they see as unfavorable.

Settlement isn’t about who’s right and who’s wrong. It’s about showing everyone that concluding the dispute is in their own self-interest. Mediation is the place to do that.

SETTLEMENT AND THE BOTTOM LINE

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The offer on the table was a good one, but the attorney thought there was hope for something better. Then I took the attorney through the “what if’s.”

Expenses Matter
How much will it cost to bring this case to trial? What about experts’ fees? I asked the attorney to create two financial statements, one that showed the net financial result now versus the likely result after more litigation. Viewed in the most favorable light, more litigation produced the same financial benefit in the end. And if the result was not so favorable, prolonging the stress and financial outlay would have a negative financial result.

Attorney’s Fees
It costs money to run a law office. In a contingent fee practice, there is a lot of outgo before the reward comes in. When an attorney’s resources are at capacity, the choice is to turn away business or expand staff and space, thereby increasing the cost of running the office.

I asked the lawyer what his hourly fee would be if he kept litigating. “I’m on contingency. It’s the same.” “No,” I explained, “when your fee is contingent, the longer you work, the lower your hourly rate.”

For what appeared to be an ego-driven motive, not only was this attorney determined to keep fighting the client’s case for no foreseeable financial benefit, he was undermining his own financial stake in the matter.

Part of my job as mediator is helping parties, adjusters, and their lawyers see the full range of issues and possible results.

SIBLING HATE

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A Minnesota appellate case shows how damaging intra-family business disputes can be.

The four Lund siblings had inherited equal shares of a trust holding a chain of grocery stores. The oldest sibling sued to force a buy-out of her shares on the ground that she had a reasonable expectation of financial independence and liquidity. She alleged breach of fiduciary duty, unfairly prejudicial conduct, and civil conspiracy. Defendants, including her CEO/brother, claimed that the requested buy-out elevated one sibling’s interests over the others’ and would force the company to take on debt to finance the buy-out. The court threw out some of the claims, but the case continued on the unfairly prejudicial conduct and equitable relief claims.

The sibs could not agree on a buy-out price, so a trial ensued during which the opposing expert’s valuations were about sixty million dollars apart. In Solomon-like fashion, the court picked a number roughly halfway in between.

But they weren’t done yet. Both sides appealed. The appellate court largely upheld the trial court, except that the trial court had denied the defendant’s claim that they be reimbursed their $800,000 in legal fees from the trust property. Ruling that the lower court had employed an incorrect standard, that issue was remanded for further proceedings. The Minnesota Supreme Court recently declined review.

The Real Cost
After five years of litigation, the plaintiff won her case. If the defense spent $800,000 in legal fees, the plaintiff probably spent a similar amount, perhaps more—a lot more—if the fee agreement included a contingency kicker.

Undoubtedly, the litigation created friction among the siblings, the full extent of which the public is unlikely to learn. This kind of animosity affects younger generations, too, and ravages family gatherings.

The judge ordered and the parties agreed to mediation. Obviously, it didn’t take. During the trial, the judge implored the parties to settle, quoting the New Testament and philosopher Reinhold Niebuhr.

Mediation offered an escape from the costs, animosity and stress of litigation. As these harms escalate, parties who previously rejected settlement may revise their view of what they really need. A benefit of mediation is that parties can agree to solutions, such as family counseling, that a judge is powerless to require.

The Lesson
There is no limit on how often parties can come to mediation. If the first mediation was unsuccessful, a second–or third–one may produce results as parties get new information and adjust their views. Mediation can occur while an appeal is pending. At this point, the parties know the full extent of the evidence and the likely outcome. Cases resolve in appellate mediation more often than not. Mediation can limit the damage to the family and its business.

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.