Don't hold back evidence for trial, as withheld evidence will not be reflected in the resolution.
Withholding evidence until trial often does more harm than it helps (this implies you're complying with the discovery rules). Many attorneys keep evidence close to the vest hoping for a surprise advantage, but this rarely affects the verdict, and the evidence won't influence the settlement if the case settle. Most attorneys who try this tactic rarely go to trial, so the “surprise” rarely pays off.
The mistake of withholding evidence is common at depositions as well. Some attorneys avoid fully questioning witnesses to keep their trial strategy hidden. This is often a mistake for the following reasons:
- Depositions are for fact-finding—anything not asked remains unknown.
- It’s often easier to catch a witness off guard at deposition than at trial.
- Highlighting weaknesses to opposing counsel early can lead to better settlement offers.
- Opposing counsel will have the chance to ask any question you don't while you're not present.
- In some jurisdictions it can even be a discovery violation if they testify differently than at depositions
Concealing your hand should be the exception, not the rule. Consider: whether the case is going to trial, how close a settlement is, and whether withholding evidence will materially affect the verdict. Keeping an open file can also make judges more lenient on discovery issues and limit opposing counsel’s ability to claim prejudice.
