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Suppose Acme Co does something which damages Bob, and Bob files suit.

Acme Co’s attorney Allen approaches Bob in person, admitting that Acme is liable and offering to pay $X as well as take steps Y and Z to address Bob’s concerns, without having to wait the extra months required for the court process to complete ($X, Y, and Z being similar to the likely court outcome), on the condition that Bob first sign what Allen describes will be a simple, limited release settling the claim. In this conversation, Allen presents himself as a reasonable person and repeatedly asserts Acme’s trustworthiness, how much they keep their word, and how they will do so here, despite Bob’s past experience.

Allen then sends Bob an extremely broad release form to sign. The release form cites amount $X but makes no mention of Y or Z, and buried in there is language that the undersigned (as marked under the line, Bob) acknowledges having already received $X and gives up any rights to ever pursue any related amounts in the future.

If Bob signs, Bob loses all rights to the claim and Acme does not even have to pay $X, because it can point to Bob’s signature acknowledging that he had already been paid in full. Given the complexity of the document, it is unlikely that unsophisticated, pro se Bob will notice this. Even if he notices the words, it is likely that Bob would sign anyway based on Allen’s previous verbal assurances that $X, Y, and Z would happen, combined with Allen’s efforts to appear reasonable and convince Bob to trust Acme.

If Bob does not sign, Acme similarly does not make payment because Allen had previously established the signature as a precondition to payment (“Acme policy.”). Bob retains the right to pursue the claim and even if he later wins a similar judgment against Acme, Acme gains the full benefit of the delay, at Bob’s cost.

Allen’s deception strategy seems most likely to have a big payoff if it is successful in fooling Bob, and a small payoff if it is not.

Is there any way this strategy could, in practice, significantly backfire?
If Bob were "playing" optimally, what, if anything, could he practically he do to make it backfire?
If nothing, why is it not commonly taught in law schools as an effective way to win over an adversary and best protect a client’s interests?

Continuation: If Bob signed, and gets annoyed at Acme's failure to follow through on $X, Y, and/or Z, Acme's strategy is to present the signed release (perhaps calling special attention to the acknowledgement of payment received) to the Court, blocking Bob from pursuing that line of inquiry any further.

In the unlikely event that Bob manages to overcome that block and figure out + execute all the legal steps needed to reach an evidentiary hearing about whether or not payment was made, Acme's strategy is to cause the finder of fact to believe that Bob had stated a preference for cash payment and Acme conceded to Bob's wishes, underscored by the clear evidence that Bob signed acknowledging receipt of the funds.

Assume that Allen presents himself to the Court as a reasonable person, that Acme is at least a locally powerful institution that many assume to be credible, and that Allen's role as an attorney further strengthens of the assumption of credibility that others in the courtroom apply to Allen in representing Acme, particularly in contrast to non-attorney Bob. As a result, any claim Bob makes about Acme contrary to a statement Bob himself signed is likely to reduce his own credibility more than Acme's; Bob and Allen both know this. Acme's strategy also includes privately pointing this out to Bob beforehand to try to convince Bob not to raise his challenge.

  • The approach is dishonest, and decent people would avoid Acme and Allen if it were known. Such a strategy could only be pursued rarely, if you want to avoid detection, and the modern era of social media and instant communication to billions, the risk is probably huge. If everybody does it, it becomes less noticeable. – user6726 Sep 1 '16 at 20:20
  • Decent people might not have a choice, depending on who Acme is, especially if Acme's the one doing something regardless of Bob or anyone else to cause an issue to Bob and anyone else who happens to be in the wrong place at the wrong time. – Burned Sep 1 '16 at 20:26
  • So you mean that Acme forces people to buy their product or uses their services, and therefore they don't have to rely on people voluntarily engaging in a trade with them? – user6726 Sep 1 '16 at 21:37
  • Suppose Acme operates an airplane etc., and accidentally dropped a heavy item which plummeted down through Bob's roof, killing his cat and damaging his property. Suppose Acme is a widely popular delivery service and a speeding driver plowed into Bob's parked car en route to a destination, recorded on some security camera. Suppose Acme is a logger or utility who started a fire that burned down Bob's shed. There are plenty of cases where folks might not be able to avoid getting hurt by Acme even if they don't explicitly choose to engage in any transaction with Acme. Suppose Acme's a monopolist… – Burned Sep 1 '16 at 21:54
  • …or close to it or suppose Acme's not a consumer-facing business. Alternatively, consider that Acme's customers, who haven't had Bob's experience, expect Acme to be generally reasonable and don't know much about Bob or anyone else who makes such allegations against/reports about Acme...suppose that as a result, even if Bob's makes an effort to get the word out, that winds up hurting his own credibility a lot more than Acme's. After all, Acme's got that document acknowledging receipt of payment, with Bob's signature on it! – Burned Sep 1 '16 at 22:01
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I could spectacularly backfire because if carried out with the intention you describe it is the crime of fraud which, in most jurisdictions, is punishable by imprisonment for some number of years.

Even if the "error" was innocent, the release would be unenforceable because Bob can demonstrate that he has not, in fact, been paid.

The signed release is only one piece of evidence a court will consider. If Bob testifies that the payment was never made and Acme has no other records of such a payment, a court may infer that the release contains a (innocent or otherwise) mistake.

  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Sep 2 '16 at 15:26

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