This is how it starts. Your former partner, ex-wife/husband, or competitor publishes in the local newspaper that you have an IQ of 50, that you operate a still in your backyard or otherwise disparage your reputation and/or family dog. You are angry, humiliated, victimized and you are ready to strike back by filing a lawsuit. Enough is enough! It’s time to lawyer-up and get even.
With just a little bit of exaggeration, the above generally defines many of the Lubbock or Amarillo litigation clients who meander into my office. They often bring with them “evidence” to prove their claim including printouts of emails, Facebook excerpts, and photos that sometimes should not see the light of day. After making a compelling argument in support of their claim, they ask for my opinion. “Mr. Moster, do you think I have a good case”. Having been in the lawsuit business for many moons, I can typically give my immediate prognosis of success or failure. Assuming the recommendation is to march forward, I offer my Lubbock and Amarillo litigation clients advice on what they need to do to increase their probability of success and not lose the case before we start. Here are a few of my pointers:
1. Don’t send out any email about the case!
This is critical advice and many a case can be compromised or lost with the touch of a send button. The bottom line is that any emails or other communications which are sent out can be obtained by your adversary’s attorney once the lawsuit is initiated in Lubbock or Amarillo. This process of fact gathering is called “discovery” and allows both sides to require the production of an electronic and/or written communication which is relevant to the dispute. In the real world of lawsuits, virtually anything that you generate has some relevance and will invariably find the light of day. So, if you emailed a girl/boyfriend that you are worried that “your claim will hold up in court”, that will come out in discovery – and you have just severely jeopardized your case and chance of winning. The best practice is to cutoff any communications with anyone except your lawyer.
2. Since the lawsuit in Lubbock or Amarillo hasn’t been filed, I can still send out emails about the case.
The answer is absolutely “no”. The timing of the lawsuit has nothing to do about your obligation to produce documents whether electronic or paper. This also relates to anything that you might have generated in the years before the lawsuit is filed with certain limitation your lawyer can explain when you prepare for the case. Be careful!
3. Text messages don’t count.
Wrong. They do. And cases have been won or lost based on the content of a text message which tend to be more spontaneous and emotionally driven than an email and thus have the potential to be incriminating.
4. I’m going to take things into my own hands and call the jerk on the other side.
This is one of the worst things you can do as it will indicate to your lawyer that you are unwilling to abide by the attorney-client relationship. Your Lubbock or Amarillo attorney is your voice during the lawsuit as he/she is well trained as a litigator to advance your case. If you take things into your own hands and call the party on the other side, anything you say can be used as evidence against you at trial. None of us would operate on ourselves after hiring a surgeon. This same admonition always applies to your attorney.
5. Forwarding attorney emails.
This is a problem area that is often overlooked and can kill your case before it starts. Remember that any emails to you from your attorney are subject to the attorney client privilege and cannot be discovered by the other side. The purpose is to allow you and your attorney to discuss the matter confidentiality along with the good – bad – and ugly. So, if your lawyer sends you a great email on why you have an overwhelming likelihood of success, don’t forward that on to any third party. If you do, that will allow the other side to argue that you have waived the attorney client privilege and argue that they can get into all of your private conversations with your lawyer. You can lose a case before you begin by just making this one mistake.
Follow a few simple rules and you will demonstrably increase your chances of success in a lawsuit. Don’t allow your adversary to destroy your case before you start!!