From Brandon Martin:
I treasure the memory of my first law and motion appearence as a young attorney because it reminds me of a lost innocence that I cannot imagine being capable of today. That's a good thing for my clients and I, of course, because it means I understand more and more that law must be seen as something that reflects the human beings who implement it with all of their susceptibility to flaws, failings, and ethical compromises. TBut, I miss the way I felt about the law when I saw it as some pure reflection of reason and attorneys as people committed to preserving its purity.
At that first hearing, I was representing the mother of an obese high school football player who had died at a practice held under negligent conditions. The witnesses to the cardiac incident that ultimately led to the young man's death were the defendant coach and the young man's teammates at the football practice. Earlier, we had propounded interrogatories, which are questions the other party to the litigation is compelled to answer, asking for the names of the students so we could send someone to talk with them and find out what they saw. We also wanted any witness statements collected from the students by the school. The defense refused to provide either on frivolous privacy grounds. At the hearing to compel the defense to cooperate, opposing counsel handed me a case and said, "Sorry to do this to you, but I just found this over the weekend. This absolutely resolves the witness statement issue in our favor." He said it with such authority and good will, I believed he meant it. I wasn't sure I'd agree if given time to read the case, but I was suprised that, in all the time I put in researching, I'd never read it. I won the argument on disclosing the names, but asked the court to dismiss the motion without prejudice in parts in regards to witness statements to give me time to review opposing counsel's case.
As it turns out, the other attorney simply lied. When I returned to the office, a quick database search showed that the case had a big stop signal in bright red cautioning that the authority was no longer good and should not be cited. Furthermore, the case was from the early 1950s and was published before the enactment of California's Discovery Act, which superceded the early law addressing witness statements. What did the other gain by pushing the limits of gamesmanship into direct deception about the authority he was citing? He gained about a month before I would have been able to get the witness statements -- perhaps redacted if they included any priveleged as opposed to factual language, but ultimately, with the names which the court just compelled we would know most of what we needed to know before that happened, anyway.
It's not the only time I've run into misrepresentation about authority, but given that it was what an issue turned on during my very first court appearence, I've always wondered how often authority is misrepresented. Now, Judicata, a legal authority database provider has released a report on their research into how often legal authority is misquoted. The results are shocking. Judicata estimates that fewer than 20% of briefs are error-free. The authors of the study speculate:
So why do lawyers still file briefs that have quotation errors?
Most of the time the errors are not malicious. It’s hard, in the midst of crafting thousands of words to support a legal argument, to make sure that every space and every letter of every legal principle matches the original text.
But that doesn’t explain every adulteration. Many of the misquotes we’ve seen are sufficiently peculiar and relevant to the brief’s context that they look likely to have been intentional.
These sorts of misquotes involve inserting, changing, or deleting language that alters the meaning of the quoted text. The changes may appear small (like changing “shall” to “may,” removing a word like “reasonable,” or substituting “or” instead of “and”), but they have the ability to alter the meaning of a sentence significantly.
The Judicata blog article, which is worth a read, has more than a few cringeworthy examples, too.
Just remember, if you are looking to retain a Bakersfield-based personal injury attorney that doesn't need to risk misquoting authority in order to advocate for you and acheive results, please feel free to contact us for an initial consultation.