Lawyers routinely make strategic advocacy choices that reflect directly, if 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 lawyer behavior to juror scrutiny.
Comparative Institutional Competence, Pleading, Discovery, Spoliation, Credibility, Advocacy Choices, Litigation Misconduct, Regulation of Lawyers, Legal Ethics, Evidence, Rule 403
Place of Original Publication
George Washington Law Review
84 George Washington Law Review 55 (2016)
Pollis, Andrew S., "Trying the Trial" (2016). Faculty Publications. 1640.