Mediation Message No. 10


Occasionally attorneys in a mediation possess undisclosed evidence which they believe would make a substantial difference in the outcome of the case if it were to be used at trial. The question confronting these attorneys is whether to divulge this “smoking gun” at the mediation or reserve it for trial, if settlement efforts should fail. There are no clear answers to this issue, but the following factors may help in resolving this conundrum:

• Is the information really case dispositive? Will it turn the judge or jury to your side or is its value exaggerated? The impact of evidence is often a subjective matter, influenced by the tunnel vision that a lawyer develops as the case is being prepared. To neutralize such an impact, ask third parties (including the mediator) for their opinions about how important the unrevealed fact is.

• Will the information ultimately be discovered? Perhaps the fact should be revealed at some point during the mediation if discovery hasn’t been completed, and there is a substantial chance that the information will be covered or included by a subsequent interrogatory, inspection demand or deposition.

• Is the information admissible? Some facts might have great influence but nevertheless are inadmissible because, for example, they may be irrelevant, hearsay, unauthenticated or have little probative value when weighed against their prejudicial effect.

• What is the financial cost of developing the “smoking gun” for trial? This question is most appropriate as to expert witnesses and the tests they must conduct to establish their opinions.

• Is the attorney, when all is said and done, prepared to try the case? There are many reasons (for example, financial costs, client reluctance, a well-prepared opponent and scheduling conflicts) why an attorney may not want to try a case. The “smoking gun” should probably be revealed under these circumstances.

• Will the case settle before trial? There is little incentive to reveal the information if, in the best judgment of the attorney, the matter must be tried.

Copyright, Michael D. Marcus January 2004

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