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The Ways that People May Unintentionally Harm a Pending Civil Lawsuit

Interviewer: Are there any ways that people, I guess, unintentionally hurt their pending case?

Robert Cummings: Yes. There are a lot of ways. The first way is not listening to their attorney. People, including attorneys, can be headstrong. While there is considerable research showing the deadly consequences of smoking, people still smoke. We, as human beings, believe that we know best. But we hire professionals for a reason: the professional has knowledge and expertise that we do not. Therefore, if you hire an attorney, follow the attorney’s advice as closely as possible.

Not Contacting an Attorney Soon Enough Can be Detrimental to Your Lawsuit

You could also hurt your case by not contacting an attorney soon enough. Almost all claims have what is called a “statute of limitation”. This is a legislative determination by our elected officials saying that claims have to be brought within a certain time period. For example, a case involving a breach of contract must be brought within four to six years, depending on the jurisdiction. If you are injured in a car accident, your claim has to be brought within two or three years, depending on the jurisdiction. In the state of Utah, if a government entity has harmed you, you have a year to make a demand on that agency before filing a lawsuit. Otherwise, if you wait for over a year, you will not be able to sue the government agency in state court. So, if you wait too long and you procrastinate, then finally call an attorney, you could have waited too long.

Delaying Contact with an Attorney Might Lead to Loss of Favorable Evidence

Additionally, if you wait too long to contact an attorney, evidence might be destroyed. Evidence might go missing. People’s memories fade. Car accidents are the prime example. Intersections are always changing. Skid marks disappear. If the case involves a car accident, the place where the accident occurred may contain crucial evidence. The road conditions, whether trees blocked a traffic sign, or the presence of skid marks. If an attorney is engaged immediately, the attorney can investigate the location to obtain evidence of the overgrown tress, the skid marks, etc. Those pictures can be priceless when it comes to litigation. If an attorney is engaged later, the conditions at the place of the accident may have changed; the skid marks may no longer be there. Overall, the passing of time can be detrimental to your case. The investigation and collecting of the evidence should begin immediately.

Withholding Information from Your Attorney Can Be Detrimental to Your Case

The last thing is not telling your attorney all of the information. We, as human beings, again, hate disclosing information that we perceive as being harmful to us. My son is a great kid with a huge heart. But even he has a tendency towards self-preservation. If I ask him a question, he will think whether he should tell me hoping that I may not find out what he has done. In essence, he is doing his own little risk/benefit, game theory analysis. I think, with clients, if they have a fact that they perceive might harm their case, they may not tell their attorney. Then, either in the deposition or through discovery or just conversation six months into the case, the attorney finds out the previously undisclosed fact. That undisclosed bad fact could easily harm the client’s case. If the fact were disclosed at the outset, the attorney could take proper steps to handle the bad evidence. If there is bad information out there, a good attorney needs to know the information because that attorney can work with bad information, can work with bad facts.

Practicing Law as a Trial Attorney is All about Telling a Story

Practicing law is all about telling the story. Attorneys do not have the benefit of watching, in real time, how the accident occurred, how the breach of contract occurred, how the relationship soured, how the crime happened. Nor does the jury, nor does the judge, nor does the opposing counsel. All we do as attorneys is take the facts that the client has given us, take the facts from independent investigations, take the facts that are discovered during litigation, and look at it and come up with a theme; a story.

I don’t mean “story” in a fictitious sense. I mean what is, with the benefit of hindsight, the story of what happened? What is my client’s memory in relation to the story as I see it? We tell that story to the judge or we tell that story to the jury. That is what, in a nutshell, the practice of law is. If a client is not forthright with us, attorneys cannot tell that story on the client’s behalf. All we are is a mouthpiece. If the client does not give the attorney the necessary information and give the attorney the full story, then that hamstrings the attorney.