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Handling Embarrassing and Damaging Facts in Litigation

People who have suffered personal injury or other harms sometimes are reluctant to pursue legal action because they are reluctant to reveal embarrassing or incriminating details about themselves in a court setting. The facts of the incident leading to an injury may include damaging information about the injured plaintiff, such as drug use, extramarital affairs, or behavior that is prohibited by an employer. A significant part of an attorney’s job is to understand how these concerns may play a role in a case’s strategy and help the client evaluate when and where such concerns should be allowed to take precedence over other tactical concerns.

One thing every potential plaintiff should bear in mind is that very few civil disputes ever go to trial. Most often, private disputes such as personal injury cases get resolved through settlement negotiations. Although such cases still involve filing court documents that can contain damaging facts about the plaintiff, they may avoid the biggest fear many plaintiffs have, of having to air their dirty laundry in a public setting, before a jury.

Broadly speaking, whether a “bad fact” can be avoided in litigation will depend on its importance. Some kinds of information simply can’t be “hidden” during a legal proceeding, because they are vital to the core issues in a case. Such facts can form a key part of the defense, or they may be an unavoidable part of the story the plaintiff must tell to not be accused of dishonesty. For example, if the plaintiff was drunk while crossing against a red light, it’s unlikely that the drunkenness won’t come up, even if the defendant was speeding and texting at the time his car hit the plaintiff. The fact that the plaintiff was drinking may not be particularly damaging, or it may present serious issues (for example, if the plaintiff is an emergency medical technician and was on call at the time of the accident).

Other information may have some marginal value to a plaintiff’s case, but its potentially damaging effects to the plaintiff’s personal or professional life outweigh the benefits of introducing it. Whether such information can be kept out of the legal process will depend on whether the adverse party knows about it, and whether it is relevant to a legitimate discovery request. In some situations both parties may want to keep bad facts hidden. The case of the extramarital affair offers a simple example. If the cheating couple was meeting for a liaison when one of them accidentally struck the other with a car, the purpose of their getting together might be best left off the table.

The adversarial nature of litigation means that the other side of the case will always want to find the most damaging information it can to help build its case. In theory an attorney has an ethical obligation to not blackmail the other side into agreeing to a low settlement offer, but not every lawyer is ethical. It’s important for clients to clearly explain to their attorney all of their concerns about the case before it gets started, so the attorney can set expectations about what matters can be kept private and what disclosures might be unavoidable.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury, workers’ compensation, and auto accident cases. We help clients sort out the pros and cons of different strategies, taking into account all aspects of each client’s individual needs and concerns. Call us today for a free, confidential attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.