I had a dilemma. I believed my clients had a favorable fraud case. Fraud is always difficult to prove clearly and convincingly, so it is necessary to find fall-back claims or additional claims to prevent a spectacular crash and burn if the facts do not present as hoped. Halfway through the case, several other fraud became apparent. But amending to add the claims might cause havoc to the proceeding. I needed to involve the client in this litigation decision.

Paraphrasing Mr. Justice Frankfurter, legal decisions would be easy if there were not competing interests. Here the competing interest was in efficiently presenting the case. The original fraud claim was simple rescission that required no expert testimony. In fact, the deadline for expert reports had expired. If the new fraud claims were asserted, then the case would be delayed, the defendant would rightfully want an expert to testify, the case was expensive enough without having to spring for experts, and possibly multiple experts to bring the new claims home.

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