Lie-tery Winners

Lying in lawsuits is widespread. Just ask anyone who has taken more than a handful of depositions or cross-examined witnesses at trial -- especially witnesses in tort cases.

Over the years, some very decent people have shaken my hand, smiled in my face and then lied to me -- under oath. At first I was offended. Then I came to expect it. But now I think something needs to be done about it because the oath has become virtually meaningless.

Lawsuits often generate what I call lottery lies. Who wouldn't lie in order to win the lottery? Imagine a lottery system in which there was no single winning ticket, but rather an indefinite number of winning tickets. Imagine a system in which a lotto prize was given to anyone who swore under oath that he or she had a winning ticket without any need to present a ticket in order to collect. In a system like this, many good people would lie to win the lottery. The oath would be no obstacle at all.

Truth to tell ...

This is what happens in court all the time. One witness in a recent case that I tried claimed that she could remember what was written on a can that she saw some 50 years ago -- when she was 3 years old and could not even read. Another witness (in a different case) swore in one deposition that he drove a certain truck every day, but then later swore that he only drove it once; he initially admitted that he was not wearing his seatbelt but later swore that he was. All of these witnesses were trying to win the lawsuit lottery, either for themselves or for someone else.

The following examples are a clear illustration of my point:

The grandmother: She came to court in a wheelchair, injured, she claimed, because of a brake failure. Not so, I laid out in my opening statement. "This is a case about the fulfillment of a medical prophecy," I argued. The medical prophecy was the statement made by a doctor long before the accident that the plaintiff's medical problems (and they were many) would get worse over time. The real cause of the accident, I told the jury, was the plaintiff. I pointed out all of the different medications that she was taking and their side effects. I also noted that many cautioned against driving while taking the medication.

This grandmother's lottery moment came when she was questioned by her lawyer. She denied taking any medication at all on the morning of the accident. I could not believe what I was hearing. If the jury believed her testimony, she was well on her way to winning her lawsuit. The problem for her was that her medical records made clear that her condition was such that she could not have gotten out of the house without her medication because she had so many ailments.

As I cross-examined her, this grandmother admitted that she could not even remember what medication she had taken just hours before coming to court, to say nothing of remembering what she had taken on the day of the accident, some years earlier. Her lottery lie did not work. The jury returned a verdict against the plaintiff.

The former police officer: This former officer's lawsuit claimed that the door on his truck was defectively designed and had come open during an accident. His expert witness admitted that at some point after the truck was manufactured someone had modified the door, and thereafter it had been poorly maintained. The plaintiff's expert also testified that the driver's door had been in this sorry condition for a long time. It was so bad that the door would not fully close -- to close it at all, it needed to be physically lifted up and shoved. This expert agreed that this condition would have been obvious to the plaintiff long before the accident.

HOPES AND DREAMS

For his part, the plaintiff had been heard bragging around town as to how much money he was going to get from his lawsuit. His deposition testimony presented his lottery moment. He swore that his own expert was dead wrong; that the door had been in perfect condition before the accident. He never so much as heard a rattle and had no problems with the door at all before the accident. No problem opening it, no problem closing it. I have no doubt that he would have stuck to this story at trial even after we presented our trump cards -- witnesses who had seen him get in the vehicle through the passenger door, because the driver's door (the one at issue), did not work properly. That dramatic moment never came because the court dismissed the case.

Strictly business:   In this case, it was not the plaintiff but her supporting witness who lied. The issue was whether the plaintiff was wearing her seatbelt during an accident while the two were on a supposed business trip. Records showed that the two had checked into a one-bedroom condo as "Mr. and Mrs." Eyewitnesses described them as acting like a loving, affectionate couple. The plaintiff's husband testified that after the accident this witness told him that he loved the plaintiff (the witness's wife) and would take care of her.

At the deposition, this witness proved to have an iron chin. We hit him with the husband's statement. Never happened, he testified. We hit him with the condo registration card, showing "Mr. and Mrs." Never happened, he testified. We hit him with hotel and credit card receipts showing that he and the plaintiff had traveled together on numerous occasions, taking the same flights and staying in the same hotels. He dismissed these records as mere coincidences. He swore that he never saw the plaintiff on the flights or at the hotels reflected in the credit card receipts.

All of these witnesses were decent people. I have no great desire to see them jailed or even fined for committing perjury. But we must do something to combat the notion that a lottery lie under oath is not really a lie.

Michael D. Jones is a partner in Kirkland & Ellis' Washington, D.C. office.

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This article is reprinted with permission from the March 26, 2001 edition of The National Law Journal. c 2001 NLP IP Company.