Trial Practice: If You Can’t Fix It, Feature It (or at least mention it before the other side does)

by Lee Gesmer on May 14, 2011

Trial Practice: If You Can't Fix It, Feature It (or at least mention it before the other side does)

One of the oldest, most hoary rules of the trial practice is this: if you have a bad fact, reveal it to the jury before your opponent does.  Otherwise, the theory goes, the jury (or judge) will think you are trying to hide it from them, and will count it against you. Worst case, you will lose credibility as an advocate – if this lawyer will try to hide a significant fact from me this time, what else is he or she hiding?  Why should I trust this attorney?

Disclosing the bad fact is OK, but even better, figure out some way to turn the “bad” fact to your advantage – “if you can’t fix it, feature it.”  For example, “my client was convicted of criminal fraud ten years ago.  We want you to know about this, jurors, and to know that he has paid his price to society, and been free of any allegations of wrong doing since.  Since then he has married, he is the father of triplets, and he hasn’t gotten into trouble since.  We all make mistakes – don’t hold this one against him.”

Doesn’t work all the time, but at least you’ve prevented the opposing lawyer from making it appear that you tried to hide the bad fact.

Hence, the raised eyebrows in the trial bar when, during the trial of Raj Rajaratnam, Raj’s lawyer called a witness for the defense, only to have the  prosecutor show, during cross-examination, that Raj had  invested $25 million with the witness shortly before trial.

Why didn’t Raj’s lawyer reveal this during direct examination of this witness?  It goes straigt to bias, of course (Raj: “hey, will you testify for me at trial?  And by the way, I’d like to invest $25 big ones with you first.  But don’t let that influence your testimony!”).  Why did Raj even do this?  Is it possible that  Raj’s lawyer wasn’t even aware of this before it was disclosed in court, and was he taken by surprise?  Clients do stuff like this, you know.  If Raj’s lawyer  didn’t know, kudos to him for not (a) fainting on the spot, or (b) strangling his client in open court.

Did this trial blunder have an impact on the verdict?  We’ll never know, of course, but it must have hurt, and it illustrates a key precept of trial practice:  if you can’t fix it feature it; or, at the very least, don’t appear to be hiding it.

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