Better Call Saul is the prequel to the award-winning series Breaking Bad, set six years before Saul Goodman (Bob Odenkirk) became Walter White’s lawyer. When we meet him, the man who will become Saul Goodman is known as Jimmy McGill, a small-time lawyer searching for his destiny, and, more immediately, hustling to make ends meet. Working alongside, and often against, Jimmy is "fixer" Mike Erhmantraut (Jonathan Banks), a beloved character introduced in Breaking Bad. The series will track Jimmy's transformation into Saul Goodman, the man who puts "criminal" in "criminal lawyer."
Obviously, if the Saul Goodman character can be described as putting the "criminal" in "criminal lawyer," you might want to carefully consider the possible ramifications of your following too closely in his footsteps.
That being said, it does appear that there may be some valuable take-away lessons. According to the author of this article, the show's writers go to great lengths to cite "real case law, legal theories and New Mexico criminal code and navigates actual civil procedures."
In a memorable scene, Jimmy emerges from the company’s bathroom brandishing a pre-litigation demand letter that he scribbled on toilet paper and yells “spoliation!” at a stunned receptionist.
And there's our new vocabulary word: "spoliation." Black's Law Dictionary (today I'm looking at the Second Pocket Edition, (c) 2001 by West Group) lists three definitions for the term:
- The intentional destruction, mutilation, alteration or concealment of evidence, usu. a document.
- The seizure of personal or real property by violent means; the act of pillaging.
- The taking of a benefit properly belonging to another.
It's worth emphasizing the proper spelling (above) and pronunciation ("spoh-lee-AY-shun") of the word, because I frequently see it misspelled and mispronounced as "spoilation" ("spoyl-AY-shun"). It's not an illogical misspelling because it's not too far a leap from "destruction ... of evidence" to "spoiling of evidence," but you likely will get some respect if you sound like you know what you're talking about if it ever comes up in court or casual conversation.
Also, I have only seen this term used in the context of the first definition, which I would guess is the same use that the Better Call Saul screenwriter had in mind:
Smith: .... My sister is an employment litigator. We talked to her pretty extensively about the steps of bringing a case — what blocks people from destroying documents if they know litigation is coming. That’s when things get into the spoliation territory.
Does this concept of spoliation really keep people from destroying documents? Black's Law Dictionary expounds on the first definition: "If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible."
In other words, neither "Gosh, Your Honor, it appears the dog ate my homework," nor "The emails I deleted the night before I handed my computer over for inspection had nothing to do with this," will shield a party if the spoliated evidence would have been detrimental to that party's case.
Before you go spoliating anything, ask yourself, would you rather be honest and up-front about evidence that is unfavorable to you and rely on the power of persuasion to reduce the harm to your case, or would you prefer to act dishonestly and risk the court inferring something even worse about you and your case?
So, yes, the possibility of getting hammered with some pretty hefty penalties during litigation deters most people from engaging in spoliation even before a lawsuit is filed.
If you don't want to lose your case due solely to negative inferences drawn from your bad conduct, don't destroy evidence. That means (1) no document bonfires, (2) no midnight paper shredding sessions, and (3) no email deletions (they can almost always be found, anyway). And, depending on the law in your state, it might also mean (4) no scrubbing of your relevant social media posts.
If you're inclined, you might want to check out Better Call Saul for some insights, especially if you are representing yourself in court. If you've already done so and have already picked up on some litigation tips, please share them below or on our Facebook page (or both!). Thank you!