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Evaluating Evidence

EVALUATING THE EVIDENCE:

The Art of Researching Your Client


So a prospective client comes to your law office, passionate and self-assured that he has a winning case for litigation.  You sit there and listen, rapt in the details.  You're swept along by the force of his narrative, disarmed by the depth of his candidness.  Sitting before you this day is not merely a  potential retainer - no, it's a protagonist of a tale that needs to be told, to be advocated, either at court or at a settlement conference with the antagonist's legal counsel. 

And so you both sign that retainer, and you're off to the races.  "I'm gonna win this court case!" your new client proclaims as his mantra.  "Truth is on my side!" 

Indeed.  And you're his knight in paper-coated armour.  Soon enough, your client has you dashing off legal motions hither and thither, supported by detailed factums garnished heavily with case law and your client's passionate narrative of the facts. 

Comes the day your motion's to be heard, and there you sit shoulder to shoulder with your client/protagonist.  "We're gonna win this, right?" 

"Indeed," you answer him.  "Truth is on our side!"

However, just fifteen minutes later into the proceedings, it suddenly dawns on both of  you that while truth may very well be on your side, the evidence evidently isn't.   

In my experience as a professional legal researcher, I have often come across this type of situation - one in which both lawyer and client are too emotionally invested in the passion and details of their litigation cause.  In many of these cases, the lawyer's client may be passionately forthright yet unfocused; detailed in the telling of their tale, yet muddled and choppy in the presentation of it.

The lawyer, in such cases, is tasked with not just getting inside their client's head, to understand the case from their perspective, but to play the part of Cyrano at court, to serve as their client's elegant mouthpiece, as they serve up pearly jewels of rhetoric, while brewing a masterpiece narrative broth of the facts from that choppy, disjunctive stew of meaty details.  

Lost in all this artful preparation is the simple spice of evidentiary support for their client's narrative - a classic case of not seeing the forest for the trees.  

By the time I'm called in by the lawyer under such circumstances, it becomes clear that no amount of case law research can salvage a case where the basic facts are not supported by corroborating evidence.  In other words, the client's version of the facts might very well be true...but do they have the evidence at hand to prove it?   

If not, then somebody has to be tasked with playing the proverbial "bad cop,"  to break the news to the client that key details of their treasured narrative must be cut from the final court version  - because, after all, it can't simply rest on a client's say-so that what happened exactly happened as they said it did.  Unfortunately, great factums do not read like great novels.  The best of them, in fact, read like sturdy academic texts, with each telling detail painstakingly foot-noted with evidence.   Otherwise, the client's factum will be judged as a great piece of fiction - the worst kind of review a lawyer could ever expect from a judge.

To avoid such circumstances, sometimes it's best simply to bring in a disinterested third party, a professional outside the close quarters of the lawyer-client relationship, someone who has no qualms about critiquing key elements in a client's narrative because he has no long-standing emotional  investment in it, other than to assist the lawyer in taking a cold hard additional look at the facts and advising where to cut, cut, cut.   

In such cases, you can be the best kind of advocate for your client by realizing when it's time to hire the services of a devil's advocate.    And that's where I come in.  As an outsider tasked solely with critiquing the evidentiary basis of the client's narrative, so as to shore it up, I can bring a wider, yet more focused, perspective to the matter.  Given my extensive knowledge of case law research, I've developed an almost instinctive feel for which kinds of fact situations demand which kinds of pieces of evidentiary support.

When a lawyer retains me to interview their client, I may be able to ascertain from that client the quality and number of witnesses available to attest to a key episode in their narrative of facts.  I can advise where - in order to salvage a client's credibility - certain allegations require certain pieces of documentary support and corroboration.  I can  evaluate the overall availability and internal consistency of a client's relevant emails, invoices,   contracts, letters, witness statements, and affidavits - the very coinage of evidence used to under-gird key aspects of the client's case.

Quite often, the availability of certain pieces of supporting evidence will serve as the key criteria for determining which parts of the narrative should be focused on, and which parts of the narrative might best be glossed over or minimized in the factum.  Does evidence potentially exist out there that might potentially conflict with the client's version of the facts?  That, too, forms part of the consideration in determining  the ultimate shape and focus of the client's narrative.

As a third party consultant, contracted by you to assist you in your role as an effective lawyer advocate for your client, my task is to help your client appreciate that, at the end of the day -  and for their best interest -  it is not the theoretical truth of your client's case that will prove decisive, but rather which aspects of their case might practically be proven to be true.

At the very least, on a balance of probabilities.

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James Cooper, a Toronto lawyer and professional legal researcher, provides lawyers and their clients with an integrated package of exhaustive case law research and evidence consultation.  For these and other related litigation support services, Mr. Cooper may be contacted for a free initial phone consultation at (905) 737-9994 or by email at
jcooper@TorontoLegalResearch.com

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