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In Litigation, Credibility Counts

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Court or tribunal appearances are a common task for litigators. Such appearances afford the Bench needed opportunities to discern the competence, veracity and credibility of members of the litigation Bar. I was recently reminded of this simple but important fact when reviewing a "Benchguide" for California Judges. The Benchguide section of interest was a brief synopsis of "Judicial Style." The section noted "there may be as many styles of judging as there are judges."

The Benchguide advised that Judges who are new to particular proceedings "may wish to spend time with a judicial colleague who has handled . . . (similar) proceedings within the last year. That judge may provide insights into how . . . matters are handled locally (and) who the attorneys are that can be counted on to state the law accurately . . ."[1] (Emphasis added.)

It is worth noting that the very inclusion of the quoted language with regard to accurate statements of the law can lead us to assume that there are other attorneys who can be counted on to be inaccurate in their statement of the law. This is not a credit to the Bar, but it is a reality.

Attorneys are called to "state the law accurately." California Rule of Professional Conduct 5-200 states that in presenting a matter to a tribunal, an attorney:

(A) Shall employ, for the purpose of maintaining the causes confided to the member, such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness. (Emphasis added.)

California Business and Professions Code §6106 identifies "dishonesty" and "corruption" as acts of an attorney that can constitute "a cause for disbarment or suspension." There are a number of other statutes, ABA Model Rules and cases that reiterate the need for candor and truth.

I had the privilege of once serving as a research law clerk to a number of Superior Court Judges. It was a role that almost forty years later I still reflect upon and deeply value. It was a role that taught me that Judges really do appreciate candor and truth from the Bar. Judges, in their own chambers, removed from the formality of the courtroom and generously spending some time with their law clerks, would often comment upon the lawyers that appeared before them. While maintaining the decorum of a Judge, there was still ample room for comments noting which lawyers were "great" and which others were habitually misleading.

I can still remember those attorneys who were known for their truth, competence and candor. At the suggestion of the Judges that I served, I watched several of these "great" lawyers try cases. I learned a great deal from just watching. I also learned that Judges valued credibility greatly.

Litigators, even those who rarely go to trial, are continually involved in a law and motion practice that requires appearances before Judges. Such practice includes the frequent filing of a Memorandum of Points & Authorities ("MPA"). MPAs are reviewed by the Court and are part of the process of judicial decision-making.

Each filing, given the Rules of Professional Conduct, should "state the law accurately." Litigators know from experience that this is not always the case. It should be and for most of those in the profession of law it is.

Litigators embracing the Rules of Professional Conduct can take note that Judges do take notice of attorneys who "can be counted on to state the law accurately . . ." This is a standard that all attorneys should seek to accomplish. The benefits of a truthful reputation will follow.

In litigation there is no question that preparation and competence are important factors for success. But they are not the only factors. A reputation for truth - for stating "the law accurately" - insures that an argument is given a fair hearing. In short, credibility counts.


[1] Cal. Judges Benchguides, Landlord-Tenant Litigation: Unlawful Detainer, Benchguide 31, Trial (CJER 2013 rev.) § 31.67, p. 31-54 (Cal. Judges Benchguides).

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