A serious penalty for perjury.

• Author: Stolberg, William H.

Regardless of how it is handled by the federal government, Florida courts already have the tools deal severely with perjury in civil litigation.

This article was planned and drafted well before the national focus on perjury involving the President of the United States, so its timeliness is just by chance. Regardless of how this matter is handled by the highest echelons of the federal government, Florida courts already have the tools to deal severely with perjury in civil litigation. The recent case of Cox v. Burke, 706 So. 2d 43 (Fla. 5th DCA 1998) is an illustration of the severity of the potential remedies.

In Cox, the trial court invoked a remedy for perjury apparently long known to the personal injury bar, and one which should be used in all areas of litigation--that is, dismissal of the perjurer's claim with prejudice. The Fifth District in Cox began by articulating the public policy supporting the dismissal: "The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary's ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way."[1]

The trial court had dismissed the plaintiff's legal malpractice case due to fraud (perjury) perpetrated by the plaintiff during discovery. Ms. Cox had made false statements under oath regarding her name, driver license details, Social Security number, and prior injuries. The dismissal was upheld on appeal because of the pervasiveness of the fraud which was characterized by the Cox court as "calculated to evade or stymy discovery on issues central to the case."[2]

Cox is in accord with substantial additional authority, including the recent cases of Kornblum v. Schneider, 609 So. 2d 139 (Fla. 4th DCA 1992), and Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (Fla. 4th DCA 1997). In Savino, the Fourth District's ruling echoed Cox: "Appellant lied about matters which went to the heart of his claim on damages. These repeated fabrications undermine the integrity of his entire action. We believe that the trial court has a right and obligation to deter fraudulent claims from proceeding in court."

A trial court has the inherent authority to dismiss an action when a party has perpetrated a fraud on the court,[3] and there are, of course, other remedies besides dismissal. Perjury is, after all, a crime and the court may send the record to the state attorney for investigation. Alternatively, the trial court may strike testimony or pleadings, or hold the perjurer in contempt.[4]

The analysis for a trial court dealing with perjury is to determine how pervasive, extreme, and material the perjury is and to determine whether the extraordinary measure of dismissal is justified.[5] The degree of misconduct needed to support dismissal is high. It has been defined as perjurious conduct, so repeated or egregious as to corrupt and compromise the process to the point that the court...