I wonder why 90% of judges refused to take affirmative action against lawyers who file papers that contain objectively, unquestionably false assertions of fact — assertions that the attorneys filing them had to have known were false.
I think the legal profession, the justice system and the world would benefit immensely from judges actually making this matter.
I know my practice would, because I don’t lie for my clients. True, to some extent it’s a good sign when the other side starts to “misrepresent the record” or the facts or the law or, well, otherwise LIE. It means my hunches were right, I’ve got their backs to the wall, they’re reduced to this. It’s useful information to me.
But why is “this” even an option? In most courtrooms lawyers can lie, if not with impunity, still at fairly negligible risk. And of course it handicaps my ability to achieve a just result for my client if the other side perceives that it can lie and get it away with it.
I’ll tell you a short story which you might think shows the opposite of what I’m arguing for here, but it doesn’t.
In one case I’m involved with, we have a judicial officer who is a tad taken with himself. He sees every dispute between counsel for the parties as an opportunity to crucify one or the other of them. There are no grey areas, no reasonable interpretations of language or law that could depart from his. I long ago gave up on approaching this judge with requests to “help both sides work out this issue,” a problem-solving mechanism most judges urge lawyers to use when they get to a sticking point. No — this former prosecutor does not understand the meaning of any of those words (“help,” “work out” or “both sides”).
So, the story. I was in court along with an associate, and he had the floor as both sides were walking through who said what to whom and when about some discovery issue. We reached a point where my associate and the other side had divergent recollections of what had happened. So this judge, out of nowhere, orders my guy, a fairly junior lawyer, on the stand, and then tells the other guy, who was every bit as stunned as we were, to cross-examine his own adversary, under oath, about what happened!
It was a travesty — and this was in federal court! Not only this: When my adversary — who didn’t have the spine, or presence of mind, or whatever, simply to refuse to take part in this circus — failed to get the “gotcha” moment the judge was looking for in this unplanned and improper cross-examination, the judge himself jumped in and, interrogation-style, took over the “cross,” cornered my guy and “got” what he wanted.
I will never forgive myself for letting this happen, by the way. But I was so stunned by it. I’d never seen such a shtick in 20 years of law practice.
Well, fool me once, shame on you. Fool me twice, shame on me.
We were later in court again. And this judicial gent pulls the routine again — only this time he tells me to get on the stand! And while I had not exactly planned it out, I had thought about what would happen if he tried this again. The question was whether my adversary, i.e., the attorney himself, should be deposed on a certain subsidiary but relevant topic. And this is how it went:
THE COURT: Mr. Adversary, do you want to be deposed?
MR. ADVERSARY: I don’t think — I haven’t — first of all, I’m not sure when Mr. Coleman spoke to me about it.
THE COURT: But when did — Mr. Coleman, when did you speak to him about it?
MR. COLEMAN: We spoke about –
THE COURT: When did you say, “I’d like to depose you. Are you willing to do it?” When did you do that?
MR. COLEMAN: I didn’t say that to him.
THE COURT: Okay. So when did you discuss with Mr. Adversary your desire to depose him?
MR. COLEMAN: When we had our meet and confer.
THE COURT: When was that?
MR. COLEMAN: That was after last year and we — and that was among the topics discussed was whether or not we — it would be appropriate to depose –
THE COURT: Is that true?
MR. ADVERSARY: That simply never happened.
THE COURT: Okay. Let’s have a hearing right now. Get on the witness stand. No, no, no. Mr. Coleman, come up and state under oath what you’ve just told me and then I’ll allow you to be cross-examined on the subject; you’ll cross-examine Mr. Adversary on it; and I will make findings. And if I make a finding that somebody has committed perjury you’ll refer you to the United States Attorney’s Office. Shall we do that?
MR. COLEMAN: If the Court insists, I will do it.
THE COURT: Well, it seems to me that I would have to have a hearing like that if I was going to proceed on your motion. No?
MR. COLEMAN: No, I don’t think so at all. I don’t think it’s necessary for me to have even actually asked him or even to have discussed it.
THE COURT: I don’t care if it’s necessary or not. You’ve made a representation to me that you did so.
MR. COLEMAN: Yes.
THE COURT: And you’re prepared to rely on that?
MR. COLEMAN: I’d never say anything that I wouldn’t say under oath.
THE COURT: On the stand, please.
MR. COLEMAN: I’m going to proceed under object — under objection.
THE COURT: Well, when you say “objection” do you wish to — you make an objection to preserve your ability to seek relief. What relief will you seek on the basis of it? In other words, is it something where you would like me to stay [unintelligible] that you can seek review from the assigned District Judge as to whether it is clearly erroneous or contrary to law to have you take the stand to satisfy me that a — as to which side is correct in a factual dispute?
MR. COLEMAN: No.
THE COURT: Okay. So what is the objection?
MR. COLEMAN: The objection is in — depending on how the proceeding ends up going. I’m not interested in staying this proceeding and — but rather stating on the record that I find it objectionable that the Court has this practice of putting attorneys on the stand without notice. Every time –
THE COURT: Well, forget it. We’ll have notice. We’ll come back on — I’ll find the date. It will be — I’m not here next week, but we’ll come back later and you’ll have notice.
MR. COLEMAN: Well –
THE COURT: Okay?
MR. COLEMAN: If the Court considers it necessary, then I’ll come.
THE COURT: Well, we have a factual dispute here between lawyers. Now, Normally I take lawyers at their word, but we have words. We’re saying things that are irreconcilable –
MR. COLEMAN: But I don’t –
THE COURT: And I’d like to be able to have a basis to determine which of them is true.
MR. COLEMAN: But are they material, Your Honor?
THE COURT: You’re asking me?
MR. COLEMAN: Yes.
THE COURT: I will ask the questions and you will answer them. If you want to withdraw the entire request then it becomes moot.
MR. COLEMAN: Well, my client has been troubled to have –
THE COURT: Or if you want to withdraw the assertion that you actually discussed it with counsel, then it also becomes moot.
MR. COLEMAN: No, I would not do that. That –
THE COURT: Okay.
MR. COLEMAN: It is proper –
THE COURT: Then we will — go back to your seat, since you object to doing it without notice, and we will come back at another time. I’ll schedule it to have a hearing on the truthfulness of the statement that he discussed it with counsel. Just so you have more notice, Mr. Coleman, you know, this does not occur in a vacuum. We have a history here of you making statements that I’ve found to be unreliable. So when this kind of dispute occurs I think it’s important both to give you the benefit of the doubt or to satisfy me that you’re not telling the truth, but I don’t want to jump to conclusions, so I want to have a hearing on it. Okay.
So maybe it’s a matter of be careful what you wish for. Here’s the one judge I’ve ever dealt with who actually routinely threatens lawyers with sanctions for fibbing — which I endorse — in the process of trying to set me up for charges (he threatened that specifically elsewhere) based on his predetermined “finding,” which he wants merely to flesh out by having me on the stand say “yes” and the other lawyer say “no,” that I have lied under oath.
Now, you might well assume this truth-seeking judge had gone with a fine-toothed comb through both sides’ papers and their respective counsels’ oral assertions to find all possible misstatements of fact and have hearings on them, too — especially ones that actually have to do with the case, much less where one side has directly brought such misstatements to the court’s attention and can document their falsity. But you’d be wrong, about that case, and every single other case.
Thankfully, there was no hearing, no charges, of course — though the rest of that transcript, believe me, contains some utterly unbelievable colloquy. But this judge wanted to use his power to show who’s boss, whose attitude he doesn’t like, or … something. So he used “truth,” and his virtually limitless power over “finding” what is true, as his cudgel.
In contrast, in the same judicial district almost a year ago, an entire pretrial order in a many-years-old case was upended based on an outright lawyer’s lie — said repeatedly, knowingly, and on the record — by my adversary, resulting in a series of events that ended up with my client being put out of business by (and, in the process, almost mine as well) by a jury that should never even have been given a chance to hear claims with no legal basis whatsoever. (The judgment was vacated a short time later, but the damage was done.) This is just one case. This bald-faced prevarication happens every day, however, in the majority of cases I’ve been involved in. It would be easier for me to name the cases in which it has not happened than the opposite.
So I guess I don’t know what I want. Still, all things considered, more judges let lawyers slide than do what the chap in the blockquote did last summer, and seeing as how — notwithstanding his insistence to the contrary — I don’t lie to judges, juries or adversaries, I’d still like to take my chances on a real all-truth-based judicial system. Ideally minus a loon or two, but I’ll take it either way.