Attorneys and parties often arrive at a mediation hearing carrying the "Jenny Craig" version of their file; their discovery volumes and boxes having been left behind in their offices. They tote along an invisible box of evidentiary material which they will ask the mediator to convey with force to their opponent (and which they insist with passion and emotion) will destroy, demolish or otherwise impede the other side's case. Some probing into the existence and merits of this evidence is well worth the investment of time. It is important to make inquiries as to whether the item has already been procured and if so, where is it? Many times, the party will admit they have not been able to locate a witness whom they believe will testify in their favor, or a document which will provide impeachment, but they have "confidence" that when it comes time for trial, they will be successful. Simple inquiries into the logistics of what has been done thus far and what needs to be accomplished in the future to obtain the evidence (a reality check) often makes this posturing disappear as if by magic. Sometimes the converse will occur and it will be clear that they will be able to provide the needed proof, but simply need some additional time to do so.
When pressed for the actual document, record, photograph or piece of deposition testimony, and if the party has it with them, it is well worth taking the time to actually review it with the propounder. Often it either does not say what the proponent of the evidence sincerely recalled it to say and this is an "ah ha" moment for the attorney, client and/or insurance adjuster. Suddenly that tasty morsel of impeachment turns to dust and focus can then be restored to the actual issues and interests. It is also useful to discuss whether an important piece of evidence (testimony or documents) will actually get before a jury, due to some evidentiary problem which may attach to it .
Some probing questions to ask: Have they thought through whether there will be any objections to the proffered evidence? If so, how would they counter those objections? For example,
Is the evidence relevant? (Ev. Code Section 350)
Are there any foundation issues? If it is testimony - will the witness be competent to testify and does the witness have personal knowledge?
If it is a writing/document, can it be authenticated; If it is an expert opinion, will he/she be qualified to testify?
Is it hearsay?
Are there any other exclusions or limitations? i.e. Ev. Code Section 352 (more prejudicial than probative, etc...) This may come up when there are gory injury photographs, drug and alcohol issues which have no real bearing on the case at hand, unsavory character evidence, and any other mudslinging.
Although some litigators may initially be reluctant to expose a case to these types of inquiries ultimately, litigators (experienced or otherwise) should realize the benefits of exploring evidentiary issues in seeking mediated resolutions of their cases.