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When Is It a Bad Time to Change Course in a Case?

By William Vogeler, Esq. on May 08, 2018 | Last updated on March 21, 2019

Time will tell whether it was a good strategy for President Trump to bring Rudolph Giuliani on board his legal team.

For now, in the words of one opposing counsel, it was a "train wreck." Giuliani changed course at least twice in less than a week, and there may be no turning back.

But what are the lessons for the every day lawyer? Don't litigate in the press? Quit while you're ahead? Let's just talk about knowing when to change course in a case.

Midstream Changes

"Don't change horses midstream" makes sense in many scenarios besides horseback riding. Abraham Lincoln brought it home in 1864 when he recited the obvious wisdom in a speech.

In litigation, it can be perilous to change lawyers or strategies in the middle of a case. In Trump's case, Giuliani may have hurt the president's position on possible obstruction of justice charges and campaign finance violations.

Such changes may be red flags or precursors to the white flag. It could mean the enemy has seen its weakness and has to try something else.

Changing lawyers could mean the attorney-client relationship has soured or the war chest is waning. Mid-litigation is probably the worst time for such changes; sometimes judges won't even allow it.

End Game Strategy

If it is not necessary to change lawyers or change course, it is usually a good idea to stay the course until the end. But there should always be an end-game strategy.

On the losing side, the strategy may be to create a record for appeal. But if you plan to win, trial is a great time to pull out a smoking gun.

Do it when a witness least expects it and when the opposing counsel has no chance to rehabilitate. Impeachment -- the witness kind -- can kill a case.

Trump's case, of course, is a different story.

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