Documentation: The Difference Between Winning or Losing
Prior to opening statements at trial, the Court will give the jury Illinois Pattern Jury Instruction 1.01(A)[5] instructing the jury that “you are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of the witness, you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and previous inconsistent statement or act by the witness concerning an issue important to the case.” In sum, the jury (or the judge in a bench trial), will assess the witness’ testimony and decide based on a variety of subjective factors if they will believe the plaintiff or the defendant.
Misconceptions of Witness Examinations
Shows like Suits and Boston Legal give a distorted view of a lawyer breaking a witness on the stand during a blistering cross-examination. However, how does the trier of fact, judge or jury, decide who should win and who should when both the plaintiff and defendant are credible? The party who can back up their testimony with documentation created contemporaneously with the subject of the testimony. This type of evidence is often lacking in business disputes, especially where a party is a small or mid-size business. This is because:
- Smaller businesses do not have policies and procedures in place requiring employees to create correspondence and other documentation regarding the event in question
- Smaller businesses often do not have the time to create extra documentation
- Smaller businesses tend to accept oral modifications of transactions
The Importance of Documentation
Although creating a paper trail can be tedious, properly documenting the history of a transaction or potential dispute can be critical during litigation. If the plaintiff and defendant testify to different versions of events in a transaction, the party who documented the transaction will likely be viewed as more credible and has a greater chance of success at trial. People have fading memories but documents do not.
Consult with Levin Ginsburg’s Commercial Litigation Practice Group if you’re interested in receiving detailed insights and strategic advice concerning your business’s document and risk management protocols. Our attorneys are here to support you and can provide high quality legal aid if you need it.
