A New York Times article (March 10, 2009) described the recent experience of an NYPD officer who was cross-examined over material on his Facebook page. While the officer's posted comment that the movie "Training Day" was a good lesson in police procedure was a joke, it did not play out that way in front of the jury. The defense attorney successfully used the officer’s public postings to paint a picture of an overly aggressive officer willing to bend the rules.
E-discovery does not end with a perusal of emails! E-discovery can readily extend to any postings on the Internet. Most lawyers will attempt to discover what, if any, Internet presence opponent’s client or key witnesses have. Where they are sometimes remiss, is in discovering their own client’s presence. Whether you represent plaintiff or defendant, it is wise to check with your client whether he or she has a Facebook/Twitter/MySpace/Orkut/Hi5/Friendster/LinkedIn/StumbleUpon/etc. presence, and whether that presence conforms with how your client wishes to be perceived in Court. If not, deleting the page isn’t an answer: some Courts have allowed the retrieval of deleted pages. You need to know how your client is holding him/herself out on the Internet in order to defuse it, ignore it, or applaud it. All three are valid options.
Thursday, April 2, 2009
Thursday, March 5, 2009
The Lie, Continued...
As much as jurors resent a witness who lies, you must have inconvertible evidence that someone is out and out lying in order to even suggest it.
Even then, it’s best to let the jurors come to the “Lie” conclusion on their own. As Bob Pave, of Pave & Bogaards puts it: “I never say that somebody is lying. I say that it's not exactly "correct," not exactly "truthful," not exactly "forthcoming" and stuff like that. I lead them right up to the edge and let them attach the word "lie" to the plaintiff, all by themselves. [e.g., Hell, it's a downright lie.]”
An effective way to help the jurors get there, is to use a “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful expostulation “And he lied!!” ever could.
Even then, it’s best to let the jurors come to the “Lie” conclusion on their own. As Bob Pave, of Pave & Bogaards puts it: “I never say that somebody is lying. I say that it's not exactly "correct," not exactly "truthful," not exactly "forthcoming" and stuff like that. I lead them right up to the edge and let them attach the word "lie" to the plaintiff, all by themselves. [e.g., Hell, it's a downright lie.]”
An effective way to help the jurors get there, is to use a “Chart of Inconsistencies.” As defense, for example, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your forceful expostulation “And he lied!!” ever could.
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