Lying in the Courtroom — It Happens All The Time by Richard M. Schmitt


 

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© 1998 by Richard M. Schmitt, Staff reporter for the Wall Street Journal

Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.

When it comes to truth and justice, the American way can involve some pretty big lies.

October 9, 1998 — A case in point: Esther Rodriguez vs. Mars Inc., maker of candy bars. Ms. Rodriguez, a custodial worker at a Snickers plant in Chicago, filed a federal lawsuit in 1996 against Mars alleging sexual harassment. During the proceedings, Mars lawyers asked her how she had spent her time during certain intervals of her career. She replied, in a sworn deposition, that she had been caring for her sick father. Later, Mars discovered that during the time in question she had been in prison, convicted of felony theft.

In Congress, lawmakers are debating President Clinton's sworn statements about his relationship with Monica Lewinsky. [President Clinton lied!] But outside Washington, lawyers and judges are talking about a trend in the rest of the country: Lying in court is getting common.

"It happens all the time," says Samuel B. Kent, a U.S. district judge in Galveston, Texas. Last month, the judge prevailed upon the plaintiff in an insurance case to drop his suit after it became clear that he had a history of filing suspicious fire claims and, according to the judge, "very likely burned down his own house."

The case didn't get far enough to determine for certain whether the judge was right. But he says lying "is becoming a remarkably common aspect of modern litigation." Last year, the National Law Journal, a newspaper for the legal profession, identified "spoliation of evidence" — hiding or destroying crucial court documents — as one of the top 10 new litigation trends of 1997.


 

Lack of punishment

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By any name, concealing the truth often goes unpunished. Mark Perlmutter, an Austin, Texas, plaintiffs' attorney who just published a book titled Why Lawyers (and the Rest of Us) Lie and Engage in Other Repugnant Behavior, says one reason perjury prosecutions aren't undertaken more often is that lying has become so generally accepted in court proceedings.

"You can catch people red-handed doing things, and nobody seems to care too much," says Patrick Malone, a Washington, D.C., plaintiffs' lawyer specializing in medical-malpractice suits. He once had evidence that a doctor erased a crucial entry in some medical records to conceal an error. The erasure constituted potential obstruction of justice; but the doctor, who claimed he couldn't remember the episode, was never penalized, according to Mr. Malone.

Perjury — defined as the intentional misrepresentation of a material fact — is tough to prove and usually not a priority for prosecutors operating on a limited budget. Still, some perjury cases are vigorously prosecuted, and some courts do come down hard on those who lie. This past summer, a psychiatrist at the Boise (Idaho) Veterans Administration Hospital was convicted of obstructing justice and sentenced to home detention and probation after lying about a sexual liaison with a patient who had sued the hospital for malpractice.

And in Washington, D.C., an orthopedic surgeon who had been a much-used expert witness for plaintiffs in car-wreck cases just finished up an 18-month term in a federal prison camp and halfway house for falsifying his credentials.

Ethicists and lawyers say big jury awards in personal-injury cases have prompted suits based on fabricated allegations. Indeed, many lies seem to be the product of wishful thinking by plaintiffs charging deep-pocketed companies with inflicting personal harm. Recently, a couple in Brazil, Indiana, sought a $50,000 settlement from Tricon Global Restaurants Inc. because, they claimed, they had discovered a withered frog in some fast food purchased at one of Tricon's Taco Bell restaurants. Not so, said the court, which last month convicted the couple of fraud. They face up to three years in jail.

Historically, lying has been most common in criminal cases, where defendants pull out all the stops in a last-ditch effort to retain their freedom. Now it is creeping into civil cases with some regularity.


 

Just tell the truth

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Today, "there is at least as much lying in civil cases as in criminal cases," says Robert Feldman, a Palo Alto, California, litigator and former federal prosecutor. He says he considers it refreshing when someone whose deposition he is taking decides to "just tell the truth for a half-hour."

In the case of Ms. Rodriguez, the candy-company worker who lied about being in jail, the judge, as a sanction, struck her answers in the deposition. That, in turn, led to the dismissal of her harassment case last year.

"This was a clear case of perjury," says Jody Moran, a Chicago labor lawyer who defended Mars. If Ms. Rodriguez had told the truth about her record, Ms. Moran says, Mars likely wouldn't have been able to use her conviction to challenge her character and credibility because her crime was several years in the past.

Will she be prosecuted for lying? Terrance Norton, a Chicago law professor who represented Ms. Rodriguez, believes his client's lie was more the product of deep embarrassment than evil intent, and therefore, he says, he would be surprised by a perjury prosecution. Besides, he adds, "It wouldn't be practical to indict all the people who lie under oath."

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| EJF Home | Join the EJF | Comments? | Get EJF newsletter | EJF Newsletters |

| Courts, Veteran Courts, And Civil Liberties | Contents | Index |

 

| Chapter 2 — Perjury And False Allegations |

| Next — Reducing The Impact Of Perjury In Domestic Violence Cases by Jonathan Marin |

| Back — The Double Standard On Perjury by Ed Quillen |


 

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Last modified 6/21/13