Bad Facts: How to deal with them

Let’s say your client has something bad in his past that is admissible and will be coming out during trial.  Or perhaps there’s evidence that he may have been drinking earlier in the day of his car crash, where a negligent party hit him and caused serious bodily injury.  How do you deal with these facts?

Lawyers, analysts, and jury experts go back and forth on how to deal with bad facts.  Do you put them out there yourself on opening statement so as to be transparent, build credibility, and get them out there to deal with them?  Or do you vehemently try your case with the best evidence you have and deal with the bad facts as they are brought out by the other side?

Position No. 1: Inoculate yourself from the bad facts and bring them out yourself

The first position agrees with the camp that you put your bad facts out there in your opening statement to come across as an honest party building credibility, and to deal with them on the front end.  However, the sponsorship camp will show you studies and statistics that say this only hurts your case.  They’ll tell you that jurors aren’t going to give you credibility anyway, and if it’s important enough for you to be talking about, they should be listening and taking note of the bad facts.

Position No. 2: Sponsorship position

The sponsorship camp will tell you to only put out the best facts that help you win your case.  You should spend your precious and valuable time talking to the jury only the valuable points that help you prove liability and damages, and how the Defendant’s negligence caused harm to your client.  The inoculation camp heavily disagrees with this and believes that if anything detrimental is going to come out in trial anyway, it better be from you rather than the defense, who will be putting it in the worst light possible.

Be mindful as to how this could affect an appeal

You may have heard it said before: “keep one eye on the jury and one eye on the court of appeals” as you try a case.  Others will tell you to simply try to win your case at the trial level at all costs without worrying about the appeal.  However, as an attorney you should always be aware of the record you are making for an appellate court.  Should you decide to put bad facts out there on your own, you are likely waiving any potential error to discuss this matter later.  That’s a strategy you need to consider prior to trial.

For these reasons, it is imperative to hire a veteran litigator and experienced Texarkana personal injury lawyer who has been involved in personal injury claims to juries for years.


SHThanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into dealing with unfavorable facts in personal injury cases.