Spend time with a litigator and you will hear all sorts of adages about how to try a case. As with old sayings in general, these aphorisms typically contain at least a grain of truth. But in the age of the vanishing jury trial, lawyers sometimes act on certain adages far beyond their original meaning. As long as the number of trials remains low or decreases even more, these myths threaten to do even more harm to good advocacy. This article seeks to distinguish some of those myths from reality.
Myth 1: Know every fact. In today’s typical complex business case, following this advice to its literal extreme would debilitate just about anyone. Even small cases now involve hundreds of e-mails of marginal or no value to the issues in dispute. In depositions, hearings and trials, lawyers will use these e-mails and other tangential facts on issues that will play no role in the outcome in the case.
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