“Well, I’ll Just Say …”

May 21, 2014

“Well, I’ll just say …” is a phrase I hear from time to time. The conversation usually involves a client, and it’s probably someone with whom I have not had a long-standing relationship. And it comes along when I’ve identified a problem or issue that gets in the way of the desired outcome.

Now, I’ve been practicing law for 11,899 days. (With a calculator, I’m counting, and for those who are math-challenged, I’m five months away from 33 years.) I’ve been blessed with many clients who I’ve been representing for 70-90% of those days, and with them it’s “the truth, the whole truth, and nothing but,” plain and simple. I’ve also noticed, for most of those days, that by some means or another I get clients who are, in many ways, like those people who have trusted me with their affairs for so long. Straight, honest, practical people, looking for the best outcome that comes from the facts as they are!

As for the others, there is a rule, Rule 11, which governs truth. In Arizona the relevant part of the rule reads:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the party’s pleading, motion, or other paper and state the party’s address. … The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact… .” [emphasis supplied]

“Well grounded in fact” means, basically, true. For sure, it doesn’t mean “well, I’ll just say” or something like that. And “reasonable inquiry” means something more than “that’s what my client said.”

I’ve quoted from Rule 11 as it appears in the Arizona Rules of Civil Procedure. Similar rules appear in the Federal Rules of Civil Procedure and the Federal Rules of Bankruptcy Procedure. Much of the fighting under the various iterations of Rule 11—there are sanctions that can be awarded, and in contentious litigation Rule 11 allegations are often used as offensive weapons in the battle—relates to a part of the rule I did not include in the quotation, to wit:  whether what was filed was filed “to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Not my issue here, today!

So, and this is classic Rule 11 matter, if you owe someone money and you get sued, you cannot deny the fact that you owe them money. There may be issues about the amount, interest, the right to collect fees, offsets, etc., but if you owe someone money you cannot deny that fact.

The same goes for all civil litigation. If you signed something you cannot deny the validity of your signature. If you were driving the car when it collided, that’s a fact you cannot deny. If you said “X, Y, or Z,” the response to the allegation is “admit.”

By the way, while I’ve focused on responses, the same goes for plaintiffs. You can only allege true facts, or facts based on information and belief. That’s the place where you get some latitude because you may only gain knowledge through the litigation process, but “information and belief” is a conjunctive phrase, and you need to be able to back up your claim with more than “that’s what I thought.”

Two final thoughts on truth! We live in a fact-filled world. Not every fact gets documented, however. And plenty of facts are based on observations, and not every observer sees everything the same way. First thought:  If you and someone else see the same thing and your reports differ, the other person may not be lying. He may have processed the observations differently. Or, in fact, he may be lying. Second thought:  If you report an undocumented fact to me and learn from me that that fact does not help your case, you can’t snap your fingers and make the fact go away. You can go away and, perhaps, sell your “new and improved” story to another attorney, but you should not expect a do-over with the first attorney.



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