Sunday, November 30, 2008
When To Show Your Smoking Gun
As a mediator, I suggest in my opening remarks that if and when it becomes appropriate to do so, the parties be open to disclosing evidence that will adversely affect the other side’s case. Unfortunately, I have seen cases settle at mediation where information was held back that could have been used by the mediator to help the other side appreciate a significant risk in not settling. As a result, the party that chose not to use the smoking gun failed to obtain the best settlement for their client.
Attorneys who have tried a number of cases are especially wary of giving up their best impeachment evidence if there is any chance that the case will not settle. The fear that somehow the other side will be able to diffuse the effect of this adverse evidence at trial has some justification but in actuality, this almost never happens.
As long as the parties are within striking distance of a settlement, there is no reason to leave smoking guns holstered. By that point, both sides have usually invested considerable time and psychic capital to get the case into a settlement posture. Opposing counsel is unlikely to pull out when confronted with a piece of evidence that further compromises their case. Often smoking gun evidence goes to the other side’s credibility and this can quickly deflate opposing counsel’s desire to continue fighting, especially if they were misled by their own client.
The best time to reveal smoking gun evidence is after as much as possible has been accomplished with the known facts and arguments. Where trust has been established with the mediator, freely discuss how best to deliver the bad news to the other side. The mediator can help package information for maximum effect.
If the party with the smoking gun can’t bring themselves to disclose the information, consider that often the same effect can be achieved simply by having the mediator inform the other side that she has seen evidence that will likely pose a danger to their case. If the other side knows and trusts the mediator, this will usually suffice to quickly bring expectations into line. Strategically, letting the other side pick the mediator can often work to your advantage for this reason.
Finally, the mediator can test the waters first by posing a hypothetical to the other side such as “If the defendant had information that contradicted x, how would that affect the evaluation of your case?” If opposing counsel acknowledges that x would damage their case, some selective or partial disclosure at that point would be appropriate. In some instances, it may be necessary to agree to make the settlement contingent on letting opposing counsel see the harmful evidence.
Carefully considering when and how to use your smoking gun evidence, will result in smarter negotiations and more favorable outcomes.