Andrew S. Pollis
84 Geo. Wash. L. Rev. 55
Lawyers routinely make strategic advocacy choices that reflect inferentially on the credibility of their clients’ claims and defenses. But courts have historically been reluctant to admit evidence of litigation conduct, sometimes even expressing hostility at the very notion of doing so. This Article deconstructs that reluctance. It argues not only that litigation conduct has probative value, but also that there is social utility in subjecting litigation behavior to juror scrutiny.
The primary goals of trial are, of course, searching for truth and achieving justice. But judges routinely conceal from jurors evidence of litigation conduct—inconsistent pleadings, abusive discovery, and evidence-selection choices—even though that conduct can be compelling evidence that would assist jurors in the quest for truthful factfinding and just results. At the same time, there is almost universal consensus on two points: (1) litigation misconduct has become pervasive because it is profitable; and (2) it goes largely unchecked.
Judges refuse to permit jurors to evaluate litigation conduct for a variety of reasons, most of which stem from misguided notions of institutional competence—that judges, not juries, are in a better position to manage the trial process and to regulate the profession. But this Article shows that admitting evidence of litigation conduct would have twin benefits: it would preserve the jury’s historic power to evaluate relevant circumstantial evidence, and it would provide much-needed disincentives for the sort of misconduct that has come to permeate our justice system.
