A client recently retained me to take over a lawsuit that had already been filed. After reviewing the documents and meeting with the client, it became apparent that the client didn’t realize that he would have to testify at trial in order to have his photographs and other exhibits admitted into evidence. The client was adamant about not wanting to testify and be cross-examined.
“I never realized I would have to testify at trial when I filed the lawsuit,” he said.
Whether you file a lawsuit as the plaintiff or whether you defend a lawsuit, you need to be aware that, in most cases, an individual has to take the witness stand in order to have exhibits admitted into evidence. An affidavit with the exhibit attached is not sufficient because the Judge wants to evaluate the credibility of each witness. Witnesses will usually be subject to cross examination by opposing counsel. A plaintiff has the burden of proving his or her case and providing sufficient evidence to do so; a defendant has to provide evidence to rebut the plaintiff’s claims.
Practice Point: Options are available depending on the facts of each potential litigation case. Depending on the plaintiff’s evidence and the defendant’s available defenses and/or counterclaims, what does the client want? Negotiate to settle quickly and get on with life? Seek non-binding mediation for a third-party’s review and suggestions? Or plan on a full trial including extensive discovery, depositions and pleadings?
A full trial is expensive, not only in terms of money, but also in terms of time and energy, and, depending on the individual, emotional stress as well.
In litigation, winning can take different forms. Consulting with an attorney to review evidence, quality of witnesses, tolerance for stress and ultimate goal will help a client determine his or her best option.