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Losing a Battle, but Winning the War: How Evidence Triumphs Over Grandstanding

Ryan R. Van Osdol

As a litigation attorney, it is never a pleasant experience to inform a client that a motion was lost during a court appearance. On the flip side, I imagine that it is an equally unpleasant experience for a client to hear that the judge presiding over the case ruled against him or her on a particular issue. However, as a recent case taught me, it is important to keep focused on the final outcome of a matter, as opposed to the skirmishes that may occur in between, because the evidence presented to the court will ultimately determine how the judge rules on the merits of your case.

I began working on this particular matter about four and a half years ago. The case involved a plaintiff who alleged in his complaint that four individual defendants defrauded him out of his company via a failed merger agreement. Specifically, the plaintiff claimed that the four individuals participated in a scheme to merge the plaintiff’s company into the defendants’ company. After the merger agreements were executed, the plaintiff alleged that the defendants stripped the plaintiff’s company of its assets and returned the plaintiff’s business to him with no assets and substantial debt. The plaintiff sought a multi-million dollar judgment against the four defendants and their business. DiMonte & Lizak represented one of the individual defendants.

After three years of discovery, I felt that we were in a strong position. The testimony from the depositions showed a failed business idea rather than a scheme to defraud. None of the defendants received any money from the failed merger attempt. In fact, some of the defendants lost a substantial amount of money in their attempt to get the business off the ground, which ultimately never happened. Moreover, the deposition testimony of third-party witnesses contradicted the plaintiff’s deposition testimony. Therefore, it appeared that the plaintiff was falsifying some of his “facts” in order to make his case seem stronger than it actually was.

In the months leading to trial, the plaintiff filed a motion for summary judgment and argued that the court should enter a judgment against all of the defendants without the need for a trial. During oral argument on the summary judgment motion, the plaintiff’s counsel misrepresented the facts of the case and argued positions that were not supported by the evidence that had been produced during the discovery phase of the litigation. I argued to the court that the plaintiff’s positions were not only unsupported, but were a blatant misrepresentation of the facts. After hearing argument, the court entered an order finding that “overwhelming evidence supports plaintiff’s arguments”, but reserved ruling on the motion until after trial.

This language appeared to be very damaging. I couldn’t believe the court overlooked the discrepancies between plaintiff’s testimony and that of disinterested third parties. I couldn’t believe the court had reached a substantially different conclusion regarding the quality of the evidence than the conclusion I had reached. I didn’t know how to explain the language in the order to the client. So, I spoke to my trial partner on this case, David Arena, and he gave me some very prudent advice.

David told me that once the trial begins, the only thing that matters is the evidence presented to the court. He told me to forget about what the other attorney said during oral arguments, because the attorney will not be testifying at trial. I decided to take this advice. David and I informed the client of the summary judgment order and began focusing our efforts on preparing for trial.

During the plaintiff’s presentation of evidence at trial, every important portion of the plaintiff’s testimony was again contradicted by the testimony of the other witnesses. After the plaintiff rested his case, our trial team and our client discussed how to proceed in light of the fact that the evidence presented appeared to make plaintiff seem untrustworthy. We all reached the same conclusion that I had reached at the close of discovery – the evidence showed a failed business idea rather than a scheme to defraud and that the plaintiff was being less than truthful in his testimony. Further, all of the defendants’ most compelling evidence was presented during the plaintiff’s case, because the plaintiff called the defendants’ most favorable witnesses during his case. Therefore, we decided not to present a defense case and argued that the judge should rule in the defendants’ favor because the plaintiff failed to meet his burden of proof on his claims.

After the trial concluded, we waited a painstaking 6 months for the court’s ruling. In late December 2012, the judge issue a twenty page written opinion, wherein the court reached the same conclusions we had reached. In fact, the judge’s analysis regarding the quality of evidence was identical to that of our trial team. He referred to the plaintiff’s testimony as “misleading and disingenuous”, “just not credible” and even found that “plaintiff’s unclean hands in this regard bars the equitable relief that he seeks against the named defendants.” Ultimately, the court entered judgment in favor of the defendants on all counts. It was a pleasant experience to see that after presentation of the evidence, the court had reached the same conclusion that I had at the close of discovery.

David was right- the evidence presented at trial triumphed over plaintiff’s attorney’s grandstanding during motion hearings. As both attorneys and clients, it is important to keep this perspective during the course of contested litigation. If there is strong evidence in support of your case, don’t worry about your opponent’s grandstanding, because the evidence will come out at trial.

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