In television and movies, litigation is a source of drama. Someone may say something surprising on the witness stand or an unexpected witness may storm into the courtroom. In my experience, however, there are a few surprises in litigation, but not the kind of dramatic ones that make for good entertainment. And while they may amuse or even shock the attorneys, they are not so interesting that outsiders usually care.

Why should you read this post about surprises in litigation?

You love to gasp and you want to know if a civil courtroom is the place for you.
You want to hear some crazy stories about things I’ve seen in my work.
You want this cute Jack-in-the-Box picture I found on your screen.

Image credit: https://en.wikipedia.org/wiki/Jack-in-the-box#/media/File:Jack-in-the-box.jpg

Disclosures Are Meant to Prevent Surprises

The American legal system requires litigants to disclose a lot of evidence in the discovery phase. And, leading up to a trial, parties must disclose what exhibits they will offer and what witnesses will testify. They also have the opportunity to interview each other’s witnesses before the trial. And before a trial, litigants often need to file “pre-trial memoranda” that will tell the judge what evidence and testimony they will present. So by the time a trial actually happens, both sides should know each other’s case pretty well.

One purpose for all of this disclosure is to prevent surprises at trial. A well planned trial may go more smoothly, take up less time, and may possibly be avoided altogether through settlement.

When I speak with lawyers in other jurisdictions, many complaint to me that trial in their countries can be “trial by ambush,” where without discovery, you have to be ready for anything, which makes the job harder.

Some Things That Surprised Me

Despite all of this disclosure, some surprises happen. Here are a few I have seen:

Sometimes a witness will say something different at trial from what they said at their deposition. It could be because the witness claimed the question was posed differently at the deposition, explaining the seemingly inconsistent response. Or it could be that the witness claimed they were wrong earlier and now remembered the correct answer.

Sometimes a witness will testify differently than the lawyer prepared them. Some people are “wild cards” whose strength isn’t focus or discipline, and so will just share what’s on their mind in response to a question. These people make difficult witnesses for their own lawyers, but great witnesses for opposing counsel who are hoping for the witness to say something they don’t realize undermines their side’s case.

Sometimes one side will introduce an exhibit that was previously disclosed, but whose exact relevance was unclear. And, by having a witness discuss the exhibit, a surprising new argument will emerge, prompting a litigant to have to respond quickly.

Surprises also arise before trial. Sometimes in discovery, lawyers will discover emails that contradict their understanding of the case. And sometimes, parties will make surprising offers to settle (or not to settle) or decisions about what arguments to pursue. Lastly, I am often surprised by lawyers acting weird, which they frequently do.

And, on a blog called Unpredictable, I have to acknowledge the fact that a judge or jury’s decision in any given case can be (and often is) a surprise.

The Kinds of Surprises I Don’t See

Although there are surprises in this job, the kinds of surprises I see in media don’t happen that often.

I never see someone abruptly confess under pressure from cross-examination. I never see the kind of soap opera plot twists like evil twins or long lost brothers (except for one case where someone did allege he was a long lost brother, but that was at the start of the case and not midway through).

And, late in a case, I almost never see some document or email that completely disproves one side’s claims or defenses. Those kind of documents usually come up relatively early and, if they haven’t come up early in discovery, they probably won’t come up later on.