Published to: 000113, 000114, 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on April 27, 2011 9:13 pm
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Merriam Webster Online Dictionary defines:
adj ˌdis-in-ˈjen-yə-wəs, -yü-əs-
: lacking in candor; also : giving a false appearance of simple FRANKNESS : CALCULATING
I like the word “disingenuous”. When I use it, I mean exactly what I say. I use it when another person, often a colleague, is saying one thing but meaning something much different. It is so much more civilized than “liar”, but it is not morally different. (See my related article “Short-sighted Lawyers”, Sat., July 31, 2010.)
Let me give one simple example. We have something in civil litigation, including Family Court, called “the rules of discovery”. They can be questions under oath, called interrogatories, requests for admission, request to inspect or copy something, or even be a deposition taken in front of a court reporter. Depositions are often video’d.
In family and circuit court the parties are mandated to disclose witnesses and exhibits by a certain deadline, but discovery usually must be answered within 20 days. I like to fire out discovery requests quickly, so I can know what the other side knows as early as possible and follow up as necessary.
The Court expects us to file and answer discovery requests timely because we are supposed to complete discovery BEFORE the final deadline for disclosing witnesses and exhibits. And, we are expected to be prepared for mediation and various hearings. That means each side needs information from the other.
I also refer you to my May 4th blog article, “Something Constructive, How to Organize Your Case.” Not every lawyer follows this format which I “borrowed” from the Casesoft company, now owned by Lexis/Nexis, but most of us should be gathering information from the client as soon as we meet them. That means we know of potential witnesses and exhibits as soon as we meet our clients!
Therefore, I believe it is DISINGENUOUS for a lawyer to prepare for a client answers to interrogatories served on her client requesting names of potential witnesses an exhibits that say, in effect, “I will not tell you of even one person I know of who knows anything about this case or list one document even if I know it is a key piece of evidence.”
What they actually say is, “The case is still being investigated and potential witnesses and exhibits have not yet been identified but will be identified by the Court Ordered disclosure date.”
I say, “Tell me what you have now!” And, I insist my client answer the questions propounded unless they ask for confidential or privileged information. It is “the rule”, and it helps me be better prepared.
The disingenuous part, of course, is that unless the lawyer is as incompetent as she is seedy, she already knows most of her potential witnesses and exhibits and is not telling the truth!
A variant of this behavior is the person who refuses to call his bank, insurance company, personnel officer, or Social Security Office to get information readily available, fills out an incomplete financial affidavit, or simply refuses to answer because the question is “unduly burdensome”.
Some questions are unduly burdensome such as requests requiring hundreds or thousands of photocopies. Most questions in a simple divorce are simply NOT unduly burdensome. Lawyers who fail to require their clients to gather this information are doing them a disservice. They ultimately cost them more money and they assure the parties do not have the information they need when they go to mediation.
Mediation may be months before the scheduled trial,, and failing to gather and disclose evidence by then may cost the client thousands of dollars in unnecessary litigation costs.
Yes, there are cases where later disclosure of a known witness can give the person an advantage. The disingenuous lawyer will argue that hiding the ball, delay tactics, and refusing to disclose obtainable information are all “part of the game”. For some they are. But, remember, hire a crooked lawyer, and she/he will also be disingenuous with you.
Especially in Family Court, honesty, candor, promptness, and diligence produce the best results. They lay a foundation for the majority of divorcing parties to be able to work together for the sake of their chidlren. Cheating and lying create a terrible foundation; also, in Circuit Court in civil cases. Sometimes in criminal cases it seems that EVERYONE is hiding the ball. I do not go there much any more. Being a defense lawyer is a delicate balancing act, and being a prosecutor is a big responsibility with its own temptations to “hide the ball”. Remember the Duke lacrosse team!
There will always be people who lie and “hide the ball”, but I do not think the best members of our profession do.
So, what is the fuss? It is that lawyers have a bad enough reputation already. It is behavior like this that feeds the stereotype that lawyers will do and say whatever they can to promote their clients’ interests.
A lawyer who refuses to make a timely disclosure, choosing one deadline over the other, who hides the ball and provides incomplete answers is “gaming the system”, just like the pitcher who “juices the ball”, the soccer player who grabs the other players shirt, or the player who takes steroids.
Each time a lawyer does these things to me, I shall be sending them a copy of this article. And, I will not forget who they are.
This post was written by Burton Hunter