I recently blogged about the need to show the jury the documents you choose to put into evidence when those documents match the testimony. Today’s blog addresses a couple of points that go along with that concept. The first pertains to witness preparation and the second is a reminder to general counsel and H.R. professionals about memorializing business transactions and events.
Point One: How many emails do professionals send and receive today? I would venture that most desk jobs see dozens or even hundreds of work related email every day. Those emails can often become valuable evidence in a variety of different types of lawsuits. While we like to believe we can process and store all of the information it is simply not possible. Witnesses need to be reminded to refresh their memory by reviewing emails they, or even others, authored. They do not want to be impeached because they “misremembered” what happened. Even simple and honest mistakes or misstatement eat away at the credibility of a witness.
Point Two: As noted above, emails often are valuable evidence in cases. Accurately and professionally recording events can be an important function of an employee’s job. This is particularly true when you know a transaction is headed south, whatever the reason. Even if you or your employees have never recorded a single thing related to a transaction, once it looks like there could be trouble, it is probably a good idea to memorialize the events that have taken place to that point. This will help with recall during discovery and ultimately reduce the number of “I don’t recalls” that may be given during deposition or at trial (either of which are likely to take place years after the events). Why is that important? See Point One above and my previous blog post titled Using Documentary Evidence In Closing Argument.
In short, when documents match the testimony (and vice versa) it rightfully lends an air of credibility with jurors. When witnesses limit the “I can’t recalls” they inherently look more credible and transparent.
