Litigators

Hold Back Sometimes

You never know when doing this could help you at trial.

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Trial lawyers prize thoroughness as well we should. But sometimes you do not discuss everything so you can save up for when it matters.

A few years ago, our firm represented plaintiffs in a messy business dispute where a group of individuals had interfered with our clients’ businesses in all kinds of ways, including by leading investors to believe that our clients were not responsible. This caused enormous damages to our clients, some of whom thought that, with the loss of investors, they could not survive.

While this proceeded in a United States court, many of the individuals were foreign born, and one of the defendants claimed he did not speak a foreign language, only English. This person did come to the United States as a young child. He spoke English with no trace of an accent so his claim seemed truthful.

But in my investigation into the client, I learned that he did, in fact, speak the foreign language. I didn’t make an issue of this at his deposition. He simply asserted that all he knew was English and I left it at that.

At the trial, many months later, our clients were doing fine, but I had erred in one way: one of our clients was a bit out of control and, while I did prep him a great deal, it apparently was not enough since my client lost his cool on the stand. What he said was admirable — about how right he was, and all that. But the client’s performance on the stand made him look like someone who could lose his cool, and fed right into the defendant’s story. It was not good for us.

The time came to cross examine the defendant I mentioned above. He reasserted what he told me at the deposition — he only spoke English. It turned out that I had voicemails about an issue which didn’t have anything to do with the case where that defendant spoke the foreign language (and said some generally offensive things). I was able to play the evidence and have it translated. And, as far as that defendant was concerned, his testimony went downhill from there.

The point is that had I done the standard thing and tried to embarrass the defendant at his deposition, I would not have been able to use this at trial. As noted, the voicemails were not admissions or anything where he discussed how he wanted to destroy my clients’ lives or businesses or anything. But the foreign language voicemails were clear evidence that the defendant lied on the stand. As such, after an argument with the judge (of course), we got the voicemails in. It is hard to say we would have won the case without that cross.

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Yes, it would have been very satisfying to surprise the defendant at his deposition. Maybe — just maybe — such embarrassment would have brought about a settlement in what was a more than normally emotionally charged business dispute. But my colleagues and I decided that that was unlikely, and so we held back.

john-balestriereJohn Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

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