Disingenuous is an interesting word. Technically it means someone lacks candor or is giving a false appearance of being frank. I used to think it meant someone was lying, but it really means that they are telling a half truth. Lying is when someone fabricates, fibs, prevaricates, perjures, deceives, dupes, fools, hoodwinks, tricks, falsifies, or misrepresents. Discussed below is one way to disconnect a lawyer’s credibility when he or she is being disingenuous or outright lying.
Disingenuous lawyers think they meet or exceed their NRPC 3.3 duty of candor even though they make materially false statements of fact or law. To these lawyers, a half (or a third) of the truth is just “effective advocacy” or as some salesmen say -- “puffing.” The Nevada Supreme Court described puffing in Bulbman, Inc. v. Nevada Bell, 825 P. 2d 588 (1992) as representations as to the reliability and performance of the system, thus puffing constitutes mere commendatory sales talk. Such “lawyer sales talk” has become commonplace in selling their client’s position. Unfortunately, there are lawyers who don’t know the line between puffing, half truths and outright lying.
Disingenuous lawyers think they are the smartest guys in the room because they know that it takes a ton of time to disprove a half truth and trial judges really dislike what can appear as mere bickering among counsel. The Nevada Supreme Court took a dim view of half truths. In Sierra Glass v. Viking Industries, 808 P. 2d 512 (1991), the Nevada Supreme Court referred counsel to the bar for sanctions where, at trial, the attorney read only part of the deposition into evidence and intentionally left out testimony of the deponent stating that the deponent resided in Las Vegas when the residency of the deponent was important to the issue of whether the deponent’s employer conducted business in Nevada. The Court said that what the lawyer thought was “clever lawyering and proficient advocacy was nothing other than a fraud on the court in violation of SCR Rule 172, (SCR Rule 172 is now NRPC 3.3) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal). The Court went on to say that counsel “clearly confused the concepts of effective advocacy and fraud.”
To counter disingenuous opposing counsel, you must disconnect their credibility by first restating the half truth. Unfortunately, this forces you to repeat it. Then you must disprove it by articulating that although part of what opposing counsel has said is true, most is a lie. You must do all of this without actually calling opposing counsel a liar because judges hate to be put in the position of deciding which attorney to believe. You must also do this in the shortest possible number of words.
The two column opposition or reply is an effective tool in disproving a half truth. Summarize the other party’s motion or opposition in the left column and put your client’s position in the right column. This technique puts perspective on half truths. An example is provided below. The two column approach allows lawyers to highlight the half-truths without bickering with counsel. Effective writing must show the judge what is wrong, as opposed to telling the judge. With citations to the record supporting your statements, counsel can effectively show the judge opposing counsel is misleading the court without engaging in unprofessional banter between counsel.
Disconnecting the other lawyer’s credibility, i.e., refuting half truths, is a powerful skill because it not only helps your argument but it also builds your credibility and reputation with that judge. Once the judge catches on to opposing counsel’s disingenuous arguments, opposing counsel has lost that argument, damaged his or her reputation and you have increased your credibility.
I. Smith’s Statement of Facts
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Jones’s Reply
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1. Smith always recognized that he was obligated to increase the payment amount owed under the contract when expenses increased.
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Smith never recognized an obligation in increase payments owed under the contract.
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2. Jones knew about the potential of an increase in expenses.
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This is not correct. There is no evidence of any notice to Jones that expenses might increase. This is an example of ipse dixit—they say it is true, so therefore it must be true. If this was a correct fact, Smith would have attached an exhibit or affidavit or declaration to their pleadings.
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--Smith and Jones had disagreements
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Smith takes this fact out of context.
First, in his deposition, Smith admitted that…..
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