But he (or she) is lying!

I have to admit that I am getting caught up in Google+.  It is much more interactive than this blog or even Facebook, and I have taken to following people with many different interests.  Some say that blogs will be a thing of the past and most "blog" entries will migrate to services such as Google+.  But I am here for now.

I was watching another round of oral argument before the court of appeal last week when one of the attorneys made a reference to opposing counsel.  The justice stopped the attorney, asked what he meant by the remark, and chastised him for making the reference.  It wasn't offensive by any means, but the attorney had used the opposing counsel as an example when he might have used any other California resident.

I often remind attorneys not to make personal attacks, not even a mention that appears to be a personal attack, on opposing counsel.  The courts just don't like it.  No matter how many times I have raised this point, attorneys continue to make personal attacks.  It puts the court in the uneviable position of trying to decide just who is lying.

Okay, but what about when the other side is dishonest, or shall I say, just out and out lying?  Sorry, I think you need to banish the word "liar" from your vocabulary.  I like to think the other side has forgotten, overlooked, or even is suffering from temporary amnesia.  We often don't see the same event eye-to-eye.  First, you need to consider whether the alleged lie could be the result of a different interpretation of the same set of facts.  Second, give the person the benefit of the doubt that maybe he or she misheard or misinterpreted the communication.

Okay, so we've eliminated all of that, and yes, the attorney is really just lying.  Sometimes it does happen, although I suspect it might happen less than we believe it does.  If the truth can be revealed by resorting to facts, then by process of elimination, the attorney is wrong.  Leave it to the court to suspect he or she is lying.  If you have to write a declaration countering what has been presented as the truth, present your version, stating your belief that opposing counsel is in error or has possibly overlooked that letter or later conversion.  If you do it in an objective style, then you will increase your credibility without "attacking" the other attorney.

Here's an example:  several years ago I was blasted in a Respondent's Brief for not addressing  in my Appellant's Opening Brief a case cited below at the trial level.  He argued that it was proof I was trying to pull a fast one or worse, an acknowledgment that my position sucked (a legal term).  I thought I had mentioned the case.  It was there in the table of contents.  When I went through the brief, I could see that one page was missing, which contained a discussion of the case.  I was able to fix the omission and dealt with the case.  I was apologetic about the omission and thanked opposing counsel for pointing out an error that I could correct.  I did not resort to any personal attacks, but I think he looked badly for engaging in such an aggressive attack only to be proven that I was not avoiding the case.