Credibility -- with Client and Adversary

Most experienced and highly respected matrimonial lawyers will agree that the single most important ingredient to bring any case to a successful conclusion is credibility. But, simple as it sounds, credibility is not achieved overnight. For a lawyer, it takes years of honest candor to develop. For a client, it is simply being fair and honest. It is what makes a weak case strong, and the lack of it makes a strong case weak.

Among the values of credibility is the ability to bring a case to a satisfactory conclusion, whether by settlement or by trial. Credibility is a two-way street between client and attorney. The client must have respect for the attorney's advice; and the attorney must recognize the truthfulness and good faith of the client.

In settlement negotiations, the credibility of opposing counsel and his/her client is an issue: Distrust of positions taken by an adversary is counterproductive. An adverse party who is not believed creates obstacles to the resolution of the issues. In court, the case is won or lost based upon the credibility of one side or the other. A court or jury makes findings of fact based upon the more credible evidence and witnesses. The results of the case are based upon the more credible case.

What Exactly Is 'Credibility'?

Most dictionary definitions of credibility are simple: “worthiness of belief.” Black's Law Dictionary, Fifth Edition, adds: “That quality in a witness which renders his evidence worthy of belief.” In distinguishing “credibility” from “competency” in a litigation context, Black's Law Dictionary comments as follows:

“Competency differs from credibility. The former is a question [that] arises before considering the evidence given by the witness; the latter concerns the degree of credit to be given to his testimony. The former denotes the personal qualification of the witness; the latter his veracity. A witness may be competent, and yet give incredible testimony; he may be incompetent, and yet his evidence, if received, be perfectly credible. Competency is for the court; credibility for the jury.”

In short, credibility establishes a standard by which statements are weighed and evaluated as to their veracity, or reliability as to their truthfulness.

Credibility is not derived simply from words alone. The reputation, demeanor and attitude of the utterer of the words are an essential part of the aura of believability. A person who is recognized as being prone to exaggerations, misstatements and unreliability does not create the appearance of belief, even though the statements made are meticulously accurate. On the other hand, a person known for the truth is likely to be believed because of the history and experience of the hearer or reader of the words to be considered.

The context in which the words appear is also a factor to be considered. If told in jest for the purpose of amusement, statements may be made that may not appear to be completely accurate or candid. The same words spoken in a serious conversation will assume a different tone, one of higher credibility, simply because of the context of the conversation. Thus, credibility consists not only of the words themselves but also of the character and reliance of the person making the statement and the context, or environment, in which they are spoken or written.

The Value of Credibility

Some of the values of credibility are self-evident. A credible attorney making a statement that is accepted by an adversary eliminates much of the need for convincing argument and persuasion. Conversely, if the attorney lacks credibility, any statement is subject to challenge, distrust and future inquiry.

Scenario #1 (the credible attorney). The wife's attorney tells the husband's attorney that although no action is yet pending, the wife has prepared a net worth affidavit in the form required in an action and would like to exchange it for the husband's net worth affidavit.

Response to Scenario #1. The husband's attorney realizes that the wife is prepared to deal honestly and to exchange information without the necessity of compulsion or costly litigation. The offer is an invitation for a cooperative, although adversarial, relationship.

Value of Scenario #1. The stage is set initially and, hopefully, to encourage a continuing relationship to deal candidly with the factual and legal issues. This posture is indicative of a desire to resolve issues at the bargaining table rather than in the courthouse. Here, there is no need to commence an action and to pursue legal remedies. For the husband's attorney, the wife's net worth statement is available in exchange for that of the husband. Although it is not usual in a heavily litigated case to require an “exchange” of net worth statements (most jurisdictions do not require a simultaneous “exchange”), the offer of exchange by the wife will normally: 1) prompt the husband to generate a net worth statement to obtain that of the wife; and 2) usually expedite the exchange of net worth statements — all without the necessity of pursuing litigation. Neither party has been prejudiced; they have simply extended to each other the courtesy of providing necessary information to which each is entitled.

Scenario #2 (the attorney without credibility). The wife's attorney suggests exchanging net worth affidavits before the action is actually commenced.

Response to Scenario #2. The husband's attorney questions whether the wife's net worth statement actually exists; and if it does, whether it consists of blank answers and “unknown” and “undetermined” values for assets where those asset values are really ascertainable. A typical response is to do nothing or to proceed with the preparation of the husband's net worth affidavit at half-speed, with the knowledge that there may be a considerable period of time before the wife's statement is ready.

Consequences of Scenario #2. The case has taken on a complexion of lack of cooperation, thereby encouraging litigation to force the acquisition of information from the adverse party. A hostile atmosphere pervades the process and creates a battle zone.

With the credible attorney, the information proffered has an aura of truth, accuracy and completeness. The urge to verify is not as pressing as in the case where credibility is lacking. This is not to say that blind acceptance should exist, but there may not be the need to explore each and every facet of information. This permits the attorney to devote his/her time to the important issues and place less emphasis upon many of the details.

The Added Value of Credibility

• Cost. When less time is spent, the cost of handling the case is lowered for both parties. The time and costs for attorneys may now be concentrated on the major points of difference between the parties and the case can be resolved more quickly.
• Fairness. An added value is the creation of a sense of fairness. This sense, in turn, encourages the adverse party to be fair, to make concessions and compromise with the realization that a resolution of the case can best be accomplished by a reasonable approach. Fairness necessitates a concern for the other party's needs and objectives. It promotes ingenuity in trying to accomplish the goals of each party without unnecessary or excessive compromise.
• Dialogue. One simple technique for resolving issues in a credible setting is to state the realistic goals of the client, having due concern for the needs and resources of the other party. Then, ask the other party for ways in which the realistic needs of the client may be met. With an atmosphere of credibility, there is created a dialogue wherein both parties acknowledge the needs of the other. Suggestions and creative lawyering then begin to emerge. There exists a feeling of both parties seeking a compromise resolution of issues, knowing that one party understands the problems of the other.
• Reduced client stress. For the clients, therefore, credibility promotes the acceptance of documents and papers; helps to validate statements and documents; eliminates petty haggling; reduces the time and expense of discovery; promotes a sense of fairness; reduces ill-will and acrimony; encourages responsive candor and fairness; reduces the time and expense of litigation; and helps to create the structure, arena and atmosphere to encourage creativity and compromise to bring about a nonlitigated resolution of the case. A settled case avoids the bitterness and enduring acrimony attendant with a heavily litigated case. The ongoing relationship between the parties may be important, particularly if children are involved. This relationship will be fostered by credibility.
• Increased efficiency. For the attorneys, credibility will have a valuable and long-lasting value. One significant value resulting from credibility is the reduction of both time and costs in handling a case. A paper containing facts from an adversary who is worthy of credibility will be looked at with seriousness and will be checked for accuracy on a “spot” basis with the underlying feeling that it is essentially correct. On the other hand, if there is suspicion as to the document submitted, it will then be scrutinized with meticulous care, thereby expending a considerable amount of time and consequent expense in order to check out and validate each fact contained in the paper.
• Mutuality. A by-product of credibility is that its presence in one party (and attorney) psychologically encourages responsive credibility on the part of the other party (and attorney). Once the feeling of cooperation and reliability exists, it is much easier and more efficient to deal with problems than if there are suspicions about the documents and distrust of the persons involved.

The result of this cooperation is that the litigation required becomes minimized. When litigation is reduced, the expense of the divorce is considerably decreased. For example, a document, which appears to contain misstatements and cannot realistically be validated, will encourage the litigation process. How much easier it would be for the other party to explain the apparent inconsistency or inaccuracy and volunteer papers and other documentation to support the validity of the facts set forth.

With credibly accurate and complete factual information, the negotiation and development of an agreement are facilitated. The agreement itself may be written with language generated by broad “brush strokes” without the necessity of lengthy and tedious provisions in anticipation of difficulties of enforcement, of overreaching and of attack upon the structure and validity of the agreement.

The epitome of credibility in an agreement is the deal documented by a “handshake.” The worthiness and reliability of the deal depends entirely upon the credibility of the persons who made it happen. Of course, “handshakes” alone cannot resolve matrimonial cases because of the prerequisites of statutes and of law, which require writings or statements in open court, and because significant changes in the lives of the parties may give rise to strained interpretations of the handshake, in addition to the lapse of memories. The attorney who has a reputation for being credible is held in high regard by the legal community and in the judicial system. He or she can function on a much higher plane, knowing that his or her statements are being believed. Reputation for veracity not only facilitates the making of a deal; it also enhances the recognition and esteem of the attorney in the eyes of his/her peers. With that recognition come referrals and future clients with the attendant proliferation of the attorney's practice.

Enhanced recognition in the legal community and among the lay public increases the opportunity of publishing articles and other works. All of these endeavors increase the potential for an enlarged and significant practice.

Credibility also increases the possibility of creativity in effectuating settlements and in presenting logical and believable arguments in the courtroom. If an attorney is thoroughly credible, then he or she may be able to work with an adverse attorney, not in a hostile atmosphere but rather in one in which both attorneys are seeking to find a solution to a problem in a manner that can reasonably satisfy the needs of both parties. Distrust and disbelief will not permit that kind of cooperation and result.

Conclusion

An attorney who is worthy of belief and trust generates confidence on the part of the client in what the attorney says and, especially, in what the attorney may recommend. If a client distrusts the attorney, the client may not take the attorney's advice and do what is really in the client's best interests. Indeed, if the client's distrust reaches a certain level, then the attorney (if the client has not yet done so) should re-examine the client-attorney relationship and may suggest to the client that it is time to terminate it. Similarly, credibility of an attorney with his adversary will expedite the resolution of issues on a fair and reasonable basis, which is, after all, the goal of good and responsible legal advocates. Perhaps even more important, the credibility of the attorney will elevate his or her level of esteem and worthiness in the legal community, all of which enures to the benefit not only of the attorney, but also the clients whom he or she represents, and the entire profession.

Most experienced and highly respected matrimonial lawyers will agree that the single most important ingredient to bring any case to a successful conclusion is credibility. But, simple as it sounds, credibility is not achieved overnight. For a lawyer, it takes years of honest candor to develop. For a client, it is simply being fair and honest. It is what makes a weak case strong, and the lack of it makes a strong case weak.

Among the values of credibility is the ability to bring a case to a satisfactory conclusion, whether by settlement or by trial. Credibility is a two-way street between client and attorney. The client must have respect for the attorney's advice; and the attorney must recognize the truthfulness and good faith of the client.

In settlement negotiations, the credibility of opposing counsel and his/her client is an issue: Distrust of positions taken by an adversary is counterproductive. An adverse party who is not believed creates obstacles to the resolution of the issues. In court, the case is won or lost based upon the credibility of one side or the other. A court or jury makes findings of fact based upon the more credible evidence and witnesses. The results of the case are based upon the more credible case.

What Exactly Is 'Credibility'?

Most dictionary definitions of credibility are simple: “worthiness of belief.” Black's Law Dictionary, Fifth Edition, adds: “That quality in a witness which renders his evidence worthy of belief.” In distinguishing “credibility” from “competency” in a litigation context, Black's Law Dictionary comments as follows:

“Competency differs from credibility. The former is a question [that] arises before considering the evidence given by the witness; the latter concerns the degree of credit to be given to his testimony. The former denotes the personal qualification of the witness; the latter his veracity. A witness may be competent, and yet give incredible testimony; he may be incompetent, and yet his evidence, if received, be perfectly credible. Competency is for the court; credibility for the jury.”

In short, credibility establishes a standard by which statements are weighed and evaluated as to their veracity, or reliability as to their truthfulness.

Credibility is not derived simply from words alone. The reputation, demeanor and attitude of the utterer of the words are an essential part of the aura of believability. A person who is recognized as being prone to exaggerations, misstatements and unreliability does not create the appearance of belief, even though the statements made are meticulously accurate. On the other hand, a person known for the truth is likely to be believed because of the history and experience of the hearer or reader of the words to be considered.

The context in which the words appear is also a factor to be considered. If told in jest for the purpose of amusement, statements may be made that may not appear to be completely accurate or candid. The same words spoken in a serious conversation will assume a different tone, one of higher credibility, simply because of the context of the conversation. Thus, credibility consists not only of the words themselves but also of the character and reliance of the person making the statement and the context, or environment, in which they are spoken or written.

The Value of Credibility

Some of the values of credibility are self-evident. A credible attorney making a statement that is accepted by an adversary eliminates much of the need for convincing argument and persuasion. Conversely, if the attorney lacks credibility, any statement is subject to challenge, distrust and future inquiry.

Scenario #1 (the credible attorney). The wife's attorney tells the husband's attorney that although no action is yet pending, the wife has prepared a net worth affidavit in the form required in an action and would like to exchange it for the husband's net worth affidavit.

Response to Scenario #1. The husband's attorney realizes that the wife is prepared to deal honestly and to exchange information without the necessity of compulsion or costly litigation. The offer is an invitation for a cooperative, although adversarial, relationship.

Value of Scenario #1. The stage is set initially and, hopefully, to encourage a continuing relationship to deal candidly with the factual and legal issues. This posture is indicative of a desire to resolve issues at the bargaining table rather than in the courthouse. Here, there is no need to commence an action and to pursue legal remedies. For the husband's attorney, the wife's net worth statement is available in exchange for that of the husband. Although it is not usual in a heavily litigated case to require an “exchange” of net worth statements (most jurisdictions do not require a simultaneous “exchange”), the offer of exchange by the wife will normally: 1) prompt the husband to generate a net worth statement to obtain that of the wife; and 2) usually expedite the exchange of net worth statements — all without the necessity of pursuing litigation. Neither party has been prejudiced; they have simply extended to each other the courtesy of providing necessary information to which each is entitled.

Scenario #2 (the attorney without credibility). The wife's attorney suggests exchanging net worth affidavits before the action is actually commenced.

Response to Scenario #2. The husband's attorney questions whether the wife's net worth statement actually exists; and if it does, whether it consists of blank answers and “unknown” and “undetermined” values for assets where those asset values are really ascertainable. A typical response is to do nothing or to proceed with the preparation of the husband's net worth affidavit at half-speed, with the knowledge that there may be a considerable period of time before the wife's statement is ready.

Consequences of Scenario #2. The case has taken on a complexion of lack of cooperation, thereby encouraging litigation to force the acquisition of information from the adverse party. A hostile atmosphere pervades the process and creates a battle zone.

With the credible attorney, the information proffered has an aura of truth, accuracy and completeness. The urge to verify is not as pressing as in the case where credibility is lacking. This is not to say that blind acceptance should exist, but there may not be the need to explore each and every facet of information. This permits the attorney to devote his/her time to the important issues and place less emphasis upon many of the details.

The Added Value of Credibility

• Cost. When less time is spent, the cost of handling the case is lowered for both parties. The time and costs for attorneys may now be concentrated on the major points of difference between the parties and the case can be resolved more quickly.
• Fairness. An added value is the creation of a sense of fairness. This sense, in turn, encourages the adverse party to be fair, to make concessions and compromise with the realization that a resolution of the case can best be accomplished by a reasonable approach. Fairness necessitates a concern for the other party's needs and objectives. It promotes ingenuity in trying to accomplish the goals of each party without unnecessary or excessive compromise.
• Dialogue. One simple technique for resolving issues in a credible setting is to state the realistic goals of the client, having due concern for the needs and resources of the other party. Then, ask the other party for ways in which the realistic needs of the client may be met. With an atmosphere of credibility, there is created a dialogue wherein both parties acknowledge the needs of the other. Suggestions and creative lawyering then begin to emerge. There exists a feeling of both parties seeking a compromise resolution of issues, knowing that one party understands the problems of the other.
• Reduced client stress. For the clients, therefore, credibility promotes the acceptance of documents and papers; helps to validate statements and documents; eliminates petty haggling; reduces the time and expense of discovery; promotes a sense of fairness; reduces ill-will and acrimony; encourages responsive candor and fairness; reduces the time and expense of litigation; and helps to create the structure, arena and atmosphere to encourage creativity and compromise to bring about a nonlitigated resolution of the case. A settled case avoids the bitterness and enduring acrimony attendant with a heavily litigated case. The ongoing relationship between the parties may be important, particularly if children are involved. This relationship will be fostered by credibility.
• Increased efficiency. For the attorneys, credibility will have a valuable and long-lasting value. One significant value resulting from credibility is the reduction of both time and costs in handling a case. A paper containing facts from an adversary who is worthy of credibility will be looked at with seriousness and will be checked for accuracy on a “spot” basis with the underlying feeling that it is essentially correct. On the other hand, if there is suspicion as to the document submitted, it will then be scrutinized with meticulous care, thereby expending a considerable amount of time and consequent expense in order to check out and validate each fact contained in the paper.
• Mutuality. A by-product of credibility is that its presence in one party (and attorney) psychologically encourages responsive credibility on the part of the other party (and attorney). Once the feeling of cooperation and reliability exists, it is much easier and more efficient to deal with problems than if there are suspicions about the documents and distrust of the persons involved.

The result of this cooperation is that the litigation required becomes minimized. When litigation is reduced, the expense of the divorce is considerably decreased. For example, a document, which appears to contain misstatements and cannot realistically be validated, will encourage the litigation process. How much easier it would be for the other party to explain the apparent inconsistency or inaccuracy and volunteer papers and other documentation to support the validity of the facts set forth.

With credibly accurate and complete factual information, the negotiation and development of an agreement are facilitated. The agreement itself may be written with language generated by broad “brush strokes” without the necessity of lengthy and tedious provisions in anticipation of difficulties of enforcement, of overreaching and of attack upon the structure and validity of the agreement.

The epitome of credibility in an agreement is the deal documented by a “handshake.” The worthiness and reliability of the deal depends entirely upon the credibility of the persons who made it happen. Of course, “handshakes” alone cannot resolve matrimonial cases because of the prerequisites of statutes and of law, which require writings or statements in open court, and because significant changes in the lives of the parties may give rise to strained interpretations of the handshake, in addition to the lapse of memories. The attorney who has a reputation for being credible is held in high regard by the legal community and in the judicial system. He or she can function on a much higher plane, knowing that his or her statements are being believed. Reputation for veracity not only facilitates the making of a deal; it also enhances the recognition and esteem of the attorney in the eyes of his/her peers. With that recognition come referrals and future clients with the attendant proliferation of the attorney's practice.

Enhanced recognition in the legal community and among the lay public increases the opportunity of publishing articles and other works. All of these endeavors increase the potential for an enlarged and significant practice.

Credibility also increases the possibility of creativity in effectuating settlements and in presenting logical and believable arguments in the courtroom. If an attorney is thoroughly credible, then he or she may be able to work with an adverse attorney, not in a hostile atmosphere but rather in one in which both attorneys are seeking to find a solution to a problem in a manner that can reasonably satisfy the needs of both parties. Distrust and disbelief will not permit that kind of cooperation and result.

Conclusion

An attorney who is worthy of belief and trust generates confidence on the part of the client in what the attorney says and, especially, in what the attorney may recommend. If a client distrusts the attorney, the client may not take the attorney's advice and do what is really in the client's best interests. Indeed, if the client's distrust reaches a certain level, then the attorney (if the client has not yet done so) should re-examine the client-attorney relationship and may suggest to the client that it is time to terminate it. Similarly, credibility of an attorney with his adversary will expedite the resolution of issues on a fair and reasonable basis, which is, after all, the goal of good and responsible legal advocates. Perhaps even more important, the credibility of the attorney will elevate his or her level of esteem and worthiness in the legal community, all of which enures to the benefit not only of the attorney, but also the clients whom he or she represents, and the entire profession.