Lawyers and Litigants
Who Sacrifice Honesty
and Exploit the
By Warren Pagliaro
t is the 28th month of a hotly contested civil case in U.S. District Court. An important motion is pending, and a hearing is called to receive testimony concerning it.
The key defendant has already taken the stand. His lawyer has fully considered the impact of his testimony. It is devastating to his clients case. But, he sees a possible, even likely, way out.
He discusses the problem with his client, who then returns to the witness stand. He is asked about matters similar to those he was asked of before. But now he testifies differently, taking a position contrary to that of his prior testimony correcting himself.
The defendants reversal is not lost on the judge. She considers the evidence and notes that the Court finds that [the defendants] testimony was not as it should have been but then finds in his favor on the pending motion after balancing the evidence and interests of both sides.
It is a stunning and unexpected loss for the plaintiffs. Yet what went wrong here was something not restricted to that courtroom and the judge who presided there. It is something endemic in the court system.
The witness, in this real-life example, lied on the stand an event which has become commonplace in American courtrooms. According to the most fundamental principles of law, thats perjury. Yet no penalties for such were applied here. In fact, they are virtually never applied.
A judge can say that his testimony was not as it should have been but what of the law? How can the justice system function at all if parties can lie without facing the consequences for committing the very act which brings the wheels of justice to a halt? And what about the lawyer who encourages such acts or does so himself?
Perjury is like a naughty word never to be admitted or discussed publicly, according to Marvin H. Shoob, U.S. District Court judge in Atlanta. Its the justice systems dirty little secret that no one wants to admit or confront.
The judicial blind eye notwithstanding, lying under oath is a serious matter. It is an offense which, at best, imperils the availability of justice, and at worst, utterly denies it. And it is an offense which could, one day, even affect you. If a key witness in or party to a civil case can lie with impunity, he can make it impossible for you to right the wrongs you came to court to address. In a criminal action, such a witness could cost you your liberty or even your life.
But the gap between this problem and obtaining any solution is entirely unbridged.
In Los Angeles, the District Attorneys office has a policy of not prosecuting perjury charges, according to a former assistant district attorney. Its the way it has been for years. Almost the only cases where it is decided that someone should be prosecuted involve political motives an enemy or someone against whom there is a desire for revenge. He cited grand jury proceedings as an example, where a prosecutor sometimes presses for perjury charges against a witness who does not provide the testimony which was sought from him. The U.S. Department of Justice reports that in the past 15 years, the number of people charged for making false statements under oath has hovered around 100 annually. But most of these cases involved people lying to investigators or grand juries not perjuring themselves at trial.
Several attorneys also observed that trying to broadly prosecute perjury cases would create a new problem glutting the courts and government lawyers offices with a quantity of cases exceeding any ability to cope.
The fact is, perjury happens in court cases all the time, noted Elliot Abelson, an attorney in private practice who worked in the Los Angeles District Attorneys office. Two people are locked in a dispute and one of them is lying, so you have conflicting stories. But cases like that too often come down to a matter of one sides word against the others, and that situation is difficult to convert into perjury charges.
Still, Abelson says, there is an aspect of the problem which is clearly actionable yet receives no attention from prosecutors or courts. What about the person who makes statements which are demonstrably, documentably false? Or makes filings or written statements in court which are simply not true, yet they are the core allegations which form the basis of the case? They may get a judge upset or even get a case dismissed occasionally, but thats the extent of it.
Judge Shoob agrees. I think people would be shocked if it were truly known how many witnesses lied under oath in a court of law every day. The problem is so pervasive that it has gotten dangerous. I would be hard-pressed to tell you about a case in the past five years in which I believed that every witness and every lawyer told me the complete truth.
Freedoms examination of the problem of false statements in filings and testimony bears out the truth of these observations. Of more than a dozen attorneys surveyed, none had ever seen a lawyer or a litigant face the statutory penalties for perjury in a civil case. One attorney said he has never seen or heard of a prosecution for perjury in a civil matter in all of his 38 years in practice. And more than 50 state and federal judges, lawyers and academics surveyed by the American Bar Association agreed that perjury in some form permeates civil and criminal courts.
There is another aspect to lying in legal proceedings where abuses are even more prevalent: the filing of legal papers and complaints. In these forms, false charges can be made and then disseminated broadly to the media or to any other place the source may desire. According to noted trial attorney Earle Cooley of Boston, You see clients and lawyers exploit this gray area constantly. There is a form of immunity which applies to papers filed in court which makes statements in them not actionable in a court of law. Given that protection, they can then spread those allegations far and wide and use them as a club against their opponents. But truth just isnt a factor.
Cooley cites a case he handled where the opposing parties testified to more than four dozen falsehoods in their complaint one which they had sent unsolicited to government agencies and newspapers with the intent to stir up trouble for his clients. They never corrected a single one of those falsehoods. Their lawyers and every jurist who handled the case turned a blind eye to their disregard for the truth, he said. Cooleys experience only illustrates that litigants and witnesses are not the only players in this self-serving game.