The facts underlying many disputes can be very simple. Others may be more complicated. In either case, when preparing a pleading, motion papers, or testimony for a court proceeding, the goal for the attorney and the client should be to tell a straightforward and compelling story, as simply as possible.
Simply put, this means a story that is stripped of the extraneous facts, unnecessary “background,” and other nuggets of information that may serve only to distract and confuse the decision makers — be they arbitrators, a judge, or a jury.
With that being said, I ask: Why do we so often load up our papers and testimony with unnecessary clutter? And why should we work so hard to eliminate it?
The first question is easy to answer and understand. From a client’s perspective, they have often lived with the dispute for a great period of time, well before they first reached out to an attorney. The client may not, however, know how to distinguish between the facts that are relevant and key to resolving a particular dispute (which requires knowing the elements of a cause of action or the grounds of the defense) and those that are not.
The attorney will and should probe to learn as much about the background of the dispute as possible, including all of the extraneous facts. After all, something that may not appear important to the client may be very important; and something that may appear important to the client may not be.
With this as a starting point, the attorney should help the client understand the claims or defenses that are cognizable, and those that are not; as well as the facts that are necessary to support those cognizable claims or defenses. As discussed in previous articles, the attorney should then work with the client so that they can determine the client’s true needs and interests in resolving the dispute, whether by negotiation and settlement, or litigation.
As for the answer to the second question, “why we should work so hard to eliminate it,” stay tuned for part two where I continue to explore facts, questions, and details in cases.
