The "big lie".

• Author: Blackwell, Donald A.
• Position: False testimony by civil litigants

Contrary to What You May Have Heard on the Evening News, False and Misleading Testimony by a Civil Litigant Can and Does Have Serious Consequences

Okay, so maybe offering false or misleading testimony in a civil deposition is not a legally or constitutionally sufficient basis for impeaching a sitting President, particularly in good economic times. However, the reality is that an ever-increasing number of state and federal courts, in Florida and elsewhere, are taking a much harsher and more aggressive approach toward civil litigants and nonparty witnesses, who, in an effort to create or bolster a claim for relief or otherwise obstruct the judicial process, repeatedly lie under oath. The result is a whole new set of potential problems for lawyers of less than candid clients and an arguably underutilized weapon in the arsenal of the vigilant litigator, who is willing to devote the time, energy, resources, and patience to uncover the truth. The following is a brief overview of the cases at the forefront of this evolving area of the law.[1]

Let's assume, for the sake of discussion, that you've just completed the deposition of an opposing party and, while you are not yet in a position to prove it, you're convinced that the witness lied about a myriad of issues relating to his educational background, his employment history, his history of other accidents, his medical history, and his social history. Fortunately, you have a client who is as outraged as you are and expresses a willingness to fund a "no stone unturned" investigation geared toward uncovering the truth. After several months of digging and thousands of dollars in fees and costs, you discover you were right. The paper trail of your opponent's life is littered with medical and psychological records that he previously concealed, employment and insurance records that belie his testimony that no such claims existed, academic records that directly contradict testimony regarding years of schooling completed and degrees obtained, proof of substance abuse, and, perhaps, evidence of an alter ego.

The issue then becomes what to do with this treasure trove of information. Traditionally, litigators have focused their efforts on the courtroom, marshalling and stockpiling impeachment evidence and then skillfully weaving it into a dramatic cross-examination. Their hope is that their dishonest adversary will crumble on the witness stand, under the weight of the contradictions and inconsistencies in their sworn testimony, and that the jury ultimately will punish their opponent's lack of candor by returning an adverse verdict. Often, this strategy works. However, for societal and psychological reasons that are well beyond the scope of this article, there also are times when the more traditional approach does not work or, worse yet, backfires. In such instances, jurors sympathize with the beleaguered party, whom they already view as a victim, and punish the diligent litigator and his or her client for what they perceive to be unwarranted and unjustified intrusions into the offending litigant's background and private life. Fortunately, there is an alternative which allows the skillful litigator to bypass the jury and still achieve the desired result.

It is hornbook law that state and federal courts have "the inherent power to regulate litigation and to sanction litigants for abusive practices." Vargas v. Peltz, 901 F. Supp. 1572, 1579 (S.D. Fla. 1995). See also Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545 (11th Cir.), cert. denied, 510 U.S. 863 (1993) (recognizing that federal courts have the inherent power to impose reasonable and appropriate sanctions on those appearing before them); Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) ("[Al federal district court possesses the inherent power to deny the court's processes to one who defiles the judicial system by committing a fraud on the court"); Pope v. Federal Express Corp., 138 F.R.D. 675,683 (W.D. Mo. 1990), aff'd in part, vacated in part on other grounds, 974 F.2d 982,984 (8th Cir. 1992) (court has inherent power to sanction litigants for improper conduct); Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107,126 (S.D. Fla. 1987) (stating the general rule).

It is equally well-established that those inherent powers include the authority to dismiss the claims or defenses of or enter a default judgment against a litigant who engages in dishonest conduct, obstructs the discovery process, abuses the judicial process, or otherwise seeks to perpetrate a fraud on the court. See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 630-632 (1962). See also Aoude, 892 F.2d at 1118; McDowell v. Seaboard Farms of Athens, Inc., 1996 WL 684140, 2-3 (M.D. Fla. 1996) (cases cited therein); Sun World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 389 (E.D. Cal. 1992) (holding that, when a litigant commits a fraud upon the court, "the inherent powers of the court support the sanction of dismissal and entry of default judgment"); Pope, 138 F.R.D. at 682 (dishonest conduct by a party or conduct that "threatens the integrity of the judicial process" is grounds for...