LIES HAVE CONSEQUENCES: WHY DO FEWER JUDGES SEEM TO CARE? by Kate Neiswender

I was in court, first day of trial, arguing motions in limine. The other side was arguing that my expert was not qualified, and suddenly the other lawyer blurted out that my expert was “indicted for criminal wrongdoing.” I was shocked and piped up that this was false, and that there was no evidence to that effect. Which there wasn’t.

In fact, during the expert’s deposition, the expert was asked about an investigation at the time he was employed at State Parks, and there was a lengthy discussion of that matter. This wasn’t an error – it was just a lie.

There were no consequences to this obvious ethical breach. The judge just waved it off, as if lying in court on a matter of some importance was not a problem.

It seems to me that this is happening more and more frequently. In another case, opposing counsel informed the court that she had personally spoken with the claims manager for her client, and that there were only three claims against a product that had blown up and sent my client to the hospital. In fact, there were six, all of which sent the users to the hospital with third degree burns. We found the others through months more of discovery, and it became clear that the lawyer had lied. She hadn’t checked with the claims manager. When called on this lie, she said we had asked the question wrong. Really? Isn’t that something we were supposed to stop doing in grade school? Blaming the cookie jar when you get caught with your hand in it is childish, yet here we are.

In one insurance defense firm, young lawyers are told that they must be prepared to do anything to win, and if they aren’t, then they should find another firm. This promotes a culture of lying. One of my colleagues, in a medical malpractice defense firm, was told that his doctor should lie in deposition; when my colleague objected, he was literally laughed at, and was told he was naive.

This one should sound familiar. In a case over interpretation of a long term lease, we asked some fairly straightforward questions and received pages of objections, without received pages of objections, without any substantive responses. Thus, asking 25 questions, we received 53 pages of objections. When called into court on that one, the other attorney waved the half-inch thick document at the court and claimed, “we gave them 53 pages of responses, your Honor!” Seriously, aren’t they ashamed to make such silly arguments?

I haven’t tried this, but one colleague has gotten so fed up with this type of behavior and has filed CCP §128.6 motions. Each time, over and again, the motions have been denied. He can quote from the transcript in court, he can show that the lawyer is responsible for lying to the court and then trying to cover it up. Each time, the court finds this kind of behavior part of “normal” adversarial tactics and denies the motion, even if the prevarication has cost the parties tens of thousands of dollars in fees.

To the judges who think this way, no, this is not normal. Lying to the court may be common, but it isn’t normal. There should be consequences. One judge (now retired) who last presided in Simi Valley always gave sanctions in discovery motions. He said the code required him to, even if the behavior had justification. In his courtroom, litigants took discovery abuses seriously and I found it easier to get good information more quickly, and with less of a fight. I also responded to discovery much more carefully when he was the judge. I would posit that sanctioning bad behavior would tend to stop its spread, but I see few judges willing to take that step.

I asked a couple judges about it. The first reaction was to wave it off, just like the judge in the first paragraph of this article. It happened; move on, counsel. But why, I pressed, lawyers should know there are consequences to bad behavior. The response from both judges was the same: we are here in a courtroom setting. We don’t know what happens outside the courtroom. And we don’t want to get tangled in a petty argument, but would rather move the courtroom towards a more civil and professional standard.

I don’t think that will work anymore. If a lawyer thinks he can claim someone whose credibility is an issue was “indicted,” say it without any evidence to that effect, that lawyer won’t be civil in the courtroom or out of it. His lies have no consequences. So he will provide objection-only responses and claim he complied with discovery. He will withhold evidence. He will lie about the most critical aspects of his case, and if caught – there are no consequences. So why not lie?

I was told very early in my career never to say the other side “lied.” They may have misrepresented something, or are mistaken, or some other less offensive word than “lie.” Twenty years later, I think the most offensive thing is not using the word “lie,” it’s the fact that lying happens on a daily basis and is getting more pervasive. I can’t even begin to talk about prosecutorial misconduct, which I understand is in the same category as the abuses I have described. The difference, of course, is that someone’s freedom is at stake, not just damages in a civil case.

I would urge everyone to write into Citations and tell me if I am just getting old and grouchy (a distinct possibility) or if you too have seen this sort of problem blossom in the past few years. Let us know what you think.

Kate Neiswender practices in Ventura, focusing on litigation, civil and constitutional rights, environmental and regulatory agency law.

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