It’s a harsh reality. What I mean by that is this: God knows the truth, but any human pursuit of truth is imperfect at best. What court is ultimately about, for good or ill, is the believable evidence.
In most cases, both civil and criminal, the majority of the evidence comes in the form of testimony. Since testimony comes from people, it is not always the truth. People remember things incorrectly, they can be mistaken, their information can be incomplete, and they can lie. But they can do all of those things believably.
Consequently, any competent attorney analyzes his client’s case not based on the “truth” as his client tells it to him, but based on what the credible evidence is likely to be if the case goes to trial. What is the other side going to say? How convincing will they be? Is there misleading or ambiguous physical evidence?
I like trying cases. I went to school to become a lawyer in order to try cases. I enjoy the intellectual rigor of sifting through the evidence and developing a strategy. I love the thrill of cross-examination. I have a passion for closing arguments. So believe me when I say that I will absolutely go to trial with you if you want to stand on principle.
But if the evidence goes the wrong way and you lose your case, you bear the loss. You need to go into the decision to try your case or settle it with your eyes wide open about the strengths and weaknesses of your case and the other side. I never want to have a client go through a trial, have it end badly, and they complain, “Mr. Page, you never told me that could happen.” Believe me: there is a worst case scenario for your case, and it could happen.
Despite the “truth”, regardless of the holes in the other side’s case, trials can turn on seemingly small things. An eye roll. A bad attitude. A witness who just goes off the rails. A sympathetic party.
There are no 100% cases. No matter how good you think your case is, there is another side. Unexpected things happen in court. Before you go to trial, be sure you have considered the downside and whether you are comfortable with that risk. If you are, batter up and swing for the fences. If not, you’d better let your attorney know.
Court is about believable evidence. It’s about risks and rewards. It’s about offers and counteroffers. It’s acceptable losses and risk tolerances, offers and counteroffers, unpredictability and uncertainty. It can be principled. It can be pragmatic. It is an ugly, imperfect, inherently biased and fallible search for answers that make sense. And that’s the truth.