What lawyers call “inconsistent statements” can come back to bite you. And sometimes you can make these statements without even knowing it.
Let me give you a real-life example.
Our client had been sexually harassed at work, including some unwelcome touching. Yuck!
As a result, she experienced some real emotional distress. These damages made up most of the “value” of her case.
We sued her former employer.
A couple of months into the litigation process, our client decided to pursue her long-time dream: to become a FBI agent.
As part of the application process, she had to fill out a form that asked her questions about her emotional health. What did she say? Essentially: I’m doing great! Never better.
How Inconsistent Statements Can Hurt Your Case
Here’s why this caused a potential problem for her case: she had filed a complaint asserting significant emotional distress damages as the result of what had happened at her job. We had argued to opposing counsel that his client owed our client a substantial settlement primarily on the basis of emotional distress damages.
Our client’s application significantly undercut our position because she now had made what lawyers call an inconsistent statement. In essence, she had said one thing on an issue of key importance to the case, then turned around and said the exact opposite.
You don’t need to be Colombo to figure out how that cross-examination might turn out for her.
An obvious question you might have at this point is this: How did her former employer know about this statement? As long as she didn’t tell anyone, wouldn’t she be okay?
It is true that, at this point, the other side did not know. But the company would have found out. How? First, her employer could have asked her in interrogatories (written questions that each side has to answer under oath), and we would have been obligated to disclose that statement. Second, her employer would have likely subpoenaed all the records from any job that she applied to—information she, again, would have to disclose.
So, it was only a matter of time before her employer found out.
Because of her inconsistent statement, in which she undercut her position that she was emotionally damaged (“Were you lying then, or are you lying now?”), we had to lower the bottom-line settlement she would take and push for an early resolution, rather than push forward into litigation thereby increasing our client’s litigation costs when we knew that her chances for a significant recovery were now greatly diminished.
What happened? Luckily, we found out about her application before mediation. Otherwise, we would have advised her very differently about settlement during the mediation, suggesting that she push further rather than take a low settlement offer.
We did settle the case and for an amount that she was happy with that did not involve going forward with a risky litigation strategy.
What This Means for You
What is the moral for you?
- Tell your lawyer about any statements you have made that might affect your case. Let him or her decide whether it is an inconsistent statement. (I don’t know that the client profiled here would have even thought of her application as a “statement,” much less an inconsistent one.)
- If you know that you have made such a statement, let your lawyer know ASAP.
- Do not assume that you can lay low with your attorney in the hopes that opposing counsel will not discover this information. Hiding it only limits your attorney’s ability to advise you accurately about your case. And understand that in ligation, opposing counsel will look under every rock and often will find damaging information if it’s there.
- Understand that your attorney will make no judgments about inconsistent statements. If you’ve made them, your attorney will likely not take you out to the woodshed or say “tsk, tsk.” The only thing he or she might say is something like this: “Thanks so much for letting me know. Let’s talk about some possible changes to our settlement and litigation strategy.”
- If you face the possibility of making a statement that might affect your case, talk to your lawyer first. Your lawyer will not always say, “No, don’t say that!” Instead, he or she will just advise you about the possible consequences.
○ For instance, in the example here, we probably would not have told our client not to state on her application that she was not experiencing any mental health problems. Why? Becoming a FBI agent was our client’s lifelong dream. She would rather (and did) take a hit on her settlement value in favor of maximizing her chance to get a job she wanted so badly.
○ The important thing is that you make an informed choice, and you can’t do that if we don’t even know about the statement you made or that you plan to make.
This issue may not arise in your case at all, but it’s important that you understand it so you can spot potential inconsistent statements.