WHAT ONE NEEDS TO KNOW REGARDING SETTLEMENTS

This is from an email from MatLaw Systems, a CLE firm for seminars on matrimonial issues, promoting their upcoming seminar on Evidence (which I am attending).

It addresses an issue that I sometimes forget - the client may be right but how do I prove it:

"Q. Why Do Negotiators Need to Know the Rules of Evidence?

A. Because you must know what evidence is admissible to figure out what negotiating positions make the most sense!

Just ask yourself: How do you evaluate your cases and formulate your negotiating positions? What do you use as your touchstone?

Most attorneys decide reasonable settlement objectives by measuring them against the projected likely outcome that would occur if the case were tried. If trial outcome is the guidepost, you must be able to assess the evidence that would be presented if you went to trial.

Remember, in assessing how your claim will fare in court what matters is not what is but what you can prove and that depends upon the admissibility of your evidence and the evidence that will be offered by the other side. Thus, you must have a working knowledge of the rules of evidence just to determine the likely outcome in court.

Example

You represent a client who claims that a particular asset is his or her separate property, either in whole or in part. To assess the viability of that claim, it is essential to know:

What if any presumptions apply?

What is the corresponding burden of proof?

If you have documents available to meet the burden of proof, are they admissible? How will their admissibility be effected by: The best evidence rule? Authentication requirements? Hearsay issues?

So, even if you never go to court you need to know these and many other essential principles of the law of evidence."