“Folksy” Language Unfortunate for Litigation Purposes

LTB default 777x437

The L.A. Times runs a story today about allegations that the U-Haul corporation has lost or "spoliated" evidence in various cases over the years.  The good part of the story (from my point of view) is its description of an old document that came up in a 2001 case in which U-Haul was sued by a man who alleged he was injured by a defective transmission.

After various complaints in that case that U-Haul was "stonewalling" and/or had spoliated evidence, Judge Robert Redding eventually sanctioned the company.  He fined U-Haul $10,000 and warned it that if the case went to trial, he would allow plaintiff to present a piece of evidence that the judge described as "that tasteless piece of literature."

It apparently has also been referred to as "the ‘dumb shit’ memo."

In the memo, written in 1976 by U-Haul founder and former chairman L.S. Shoen, Shoen chose to give advice to U-Haul managers who might be called to testify.  Don’t lie, he said, but "embrace the fleeting nature of memory" (I think that’s the Times paraphrasing, not a quote from the memo).  "After 48 hours," Shoen wrote, "the memory curve drops off to approximately 10% of what we originally saw or heard," he wrote. "So the first rule is to realize that you are a ‘dumb shit’ and be glad that you are."  (The 2001 case settled.)

The Times did not cite any evidence that the "dumb shit memo" ever actually influenced any manager to give "10%" testimony, and U-Haul’s current lawyers pointed out to the Times that this was a 40-year-old memo that had only given some sensible advice anyway.  An assistant GC for U-Haul described the memo as "simply a folksy — and sensible — reminder that if you do not know the answer to a question, then say you do not know. This is the same advice given to witnesses every day by lawyers."  We just tend to be less folksy about these kinds of things.

Link: Los Angeles Times (full story)
Link: Los Angeles Times (the part about the memo)