Litigators have been confronting “alternative facts” since the dawn of litigation. Allegations in complaints, denials in answers and assertions from witnesses often come from the realm of fantasy. While false or fantastical assertions can result from a range of conditions—from intentional deceit to faulty memory—their consequences are almost always pernicious. They make cases harder and costlier to litigate, limit the possibilities of settlement and can take the focus off more important issues in the case where the parties may have honest differences about what happened and what the facts import.
“Alternative facts” are bad news in the sphere of litigation, and we should try to eliminate them whenever possible. It turns out that organization is the most effective tool we have in this battle.
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