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'But That Wasn't The Deal!'

By Michael G. Trachtman

In litigation, the truth does not always matter. What does matter is the persuasiveness of the evidence. All other things being equal, if your adversary's testimony seems more credible to the judge or jury than your testimony, your adversary will likely win, no matter who's telling the truth.

In a typical case, Widget-buyer Mr. Jones testifies that Mr. Smith, the Widgets Corporation sales manager, told him that if he put his order in now, the price would be discounted by 10%. Mr. Smith, on the other hand, testifies that was not the deal at all. Rather, he says, it was agreed that the discount was to kick in only if Mr. Jones ordered at least one million widgets, which never happened. $300,000 is in question. Which side do you find in favor of, and on what basis?

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