False testimony is viewed with heavy scrutiny by the courts, and rightfully so. Bad evidence has led to some severe outcomes, such as wrongful convictions in criminal cases. In civil and criminal cases, both federal and state, false testimony is a crime and punishable with prison time or home detention, and may occur in civil trials.
Take for example the case of a postal worker who lied in a civil proceeding about a sexual relationship with a subordinate. Not only did the postal worker lose their job, but was also sentenced to 13 months in federal prison. In another example, a defendant committed perjury when by lying about assets so that the plaintiffs, a group of civil rights marchers, could not recover the $450,000 the court awarded them. The defendant was originally sentenced to home detention and community service; however, an appellate court reviewed the case, vacated the sentence and requested the lower court reconsider the case for enhanced sentencing.
Another consequence of false testimony in a civil case is a dismissal. In one example, the plaintiff alleged that a fire extinguisher fell from a wall at a big box home improvement store and struck her, causing injury to her neck and back. In response to interrogatories, the plaintiff stated she had no prior history of neck pain and that, while she had been involved in motor vehicle accidents, these were only minor and did not require medical treatment. However, evidence contradicted her statements, showing that she had visited the ER months prior to the incident alleged in the complaint due to neck and back pain as a result of a motor vehicle accident. She also visited the ER seven months prior to the alleged incident for neck and back pain due to a fall, and she had visited the ER eight months prior to the deposition for injuries sustained in a high-speed motor vehicle accident. Counsel for the defendant raised the issue of the false statements in court, and the judge ultimately dismissed the case with prejudice.
Clients who provide false testimony also create an ethical dilemma for the attorneys representing them. This arises from the issue of confidentiality. What should a lawyer do if they discover that information given in a client’s deposition is false? Does alerting the court violate client confidentiality? The answer is that the lawyer is allowed to disclose this information due to their duty of candor to the court, which supersedes the duty of confidentiality. While procedural rules are clear on this, it certainly puts the attorney in an uncomfortable situation.
If you hope to avoid a negative outcome like those mentioned above, you will want to vet your client and witness depositions to help ensure they don’t end up introducing false testimony in court. After all, no lawyer wants to see hours of work invested into a matter go down the drain due to a dismissal for false testimony, nor do they want to suffer reputational damage for failing to do the basic task of fact-checking clients and witnesses.
One way to do this vetting process is to gain access to public, private and business records relevant to the matter. The type of records you will want to seek out will depend on the type of case as well as the information you obtain through deposition. Your goal will be to fact check the statements made during the deposition to help ensure your client or witness is telling the truth.
Take the aforementioned case about the falling fire extinguisher. While a records search may or may not have revealed the plaintiff’s previous trips to the hospital, they could have brought to light past and current vehicle information, driver license information, criminal records, accident reports and any history of prior litigation and judgments. These pieces of information may have highlighted possible falsities in the client’s statements made to counsel, thus preventing her lawyers from spending time on a case that the court ultimately dismissed.
Other records that might be relevant for fact-checking a client or witness include information regarding assets and debts, such as liens, bankruptcy filings, current and past property deeds, property assessments and foreclosures. Business records, such as current and past employers, current and past corporate affiliations, and UCC filings, may also be useful. Even basic personal information, such as full names and aliases, past and current addresses, and names of relatives, can help substantiate client and witness testimony.
Some of the records mentioned are available through basic Internet searches; however, the results will be limited in scope and may be outdated. You may also find some of this information on individual’s social media accounts; however, this process can be tedious and depending on the account’s privacy settings, you may not be able to glean much insight.
Another option is to rely on technology. Solutions like TLOxp® from TransUnion provide lawyers with access to a robust database of actionable information, including public and proprietary records. The information is updated regularly in an attempt to provide relevant and useful data. Learn how you can use TLOxp to access public, private and business records to help you review your clients and witnesses.