…On “Truthiness” in the Courtroom…

by erllaw

Invariably a client suggests taking a preemptive strike against their adversary in court by raising a false allegation.  “I’ll say he did such and such or so and so, and it will be his word against mine; then, if he said I did such and so or so and such, I’ll have taken the first punch on that topic, and have the upper hand.”

People are often tempted to make things up when they fear that someone will accuse them of something they may have actually done, more or less.  And, in my experience, people often think they are being smart and savvy when they come up with these schemes.  It is my job to persuade them that, not only is lying immoral, not only is lying in court illegal and criminal, but it is also the best way to lose your case and mess up your life.  Let me break this down a little bit.

To make my thesis understandable, let’s take a hypothetical situation.  Let’s say Dick and Jane are in a fight over custody of their kids.  When they got divorced, the kids went to live with Jane.  Dick got standard visitation.  They both live in the same city.  Now Jane wants to move to Ohio, claiming that all her family is there, she has no family or friends in Texas, and the kids will be better off among her kinfolk in Ohio.  Dick wants to fight to keep the kids in Texas.  Jane is free to move to Ohio, says Dick, but she’ll have to leave the kids with me.

Dick has been known to smoke marijuana on occasion.  Eight years ago he was arrested for possession of marijuana and did one year of probation.  Currently, Dick is a very involved dad, going to all his kids soccer games and dance recitals, attending birthday parties, taking them on vacations, and doing everything a divorced dad can and should do to have an active relationship with his kids.

When Jane tells him she intends to move the kids to Ohio, Dick consults a lawyer to see what he should do.  Halfway through the interview, the lawyer tells Dick, “Look, you can file a petition to modify custody, asking to be appointed the parent the kids live with.  Your petition will allege that Jane intends to move the kids out of Texas, that this is not in their best interest, and that it’s time for the kids to come live with you.  But you should know what you’re getting into.  Jane might testify that she’s seen you with glazed eyes and the smell of pot in your car on some occasions when you’ve dropped the kids off with her.  You’ve got to be ready to meet those allegations and be prepared to undergo drug testing if you want to go through with this.”

Immediately, Dick feels defensive.  He knows what the lawyer says is true.  Jane has threatened to accuse him of doing drugs around the kids before.  He knows he doesn’t do this, and so does Jane.  But the thought of Jane publicly smearing him with lies infuriates Dick.  “OK,” he snaps at the lawyer, “then we’ll beat her to the punch.  When you type up my petition, put in there that I’ve seen Jane drive drunk with the kids in the car.”

Is this a bad strategy for Dick to pursue?  Yes.  Dick immediately assumes that if Jane lies about him, her lies will be believed.  In despair, he decides he must fight fire with fire.  Why is this wrong?  Read on.

1.  Lies are Detectable.  When you lie about an event in court, you open yourself to a host of questions designed to expose your lie.  When a person witnesses a grievous event, such as a parent abusing substances around their kids, society expects that person to take certain actions in response.  Example: filing a police report; notifying child protective services; calling relatives; refusing to allow that person to be around the children while intoxicated.  And if these responsive actions are not demonstrated and corroborated in court, it’s likely the judge won’t believe your allegations anyway.  Worse, the judge may conclude you are lying–and penalize you harshly for it.  Also, don’t forget, people–including judges–can often tell when someone is lying.  There are certain behaviors we can’t always control when we lie–body language, eye movements, voice stress–that are especially likely to come out when we are being rigorously cross-examined.  Not a good idea.

2.  You Can’t Duck or Hide Your Own Dirty Laundry.  No one is perfect, and no one is expected to be perfect.  Judge Judy doesn’t get mad at someone on her show because he or she made a mistake.  She gets really mad when someone on her show stubbornly denies an obvious mistake.  So often, we think that if we deny a mistake we made, it will go away.  We think, if I deny it on the record–if I just say it didn’t happen–then it won’t go any further.  Problem is, when someone denies mistake after mistake, or denies a mistake that obviously occurred because no other plausible explanation exists under the circumstances, they just end up sounding like a big, fat liar.  And that does way more damage to your case than admitting you made a mistake.  If you can admit you made a mistake, that shows that you are capable of accepting responsibility for your actions.  If you can’t admit you made a mistake, it shows the opposite–that you have a problem with responsibility, and also with honesty.  Heaven help you if you end up being branded a liar during a court case–you will lose, shamefully so, and very possibly unnecessarily so.

Let’s go back to the Dick and Jane example.  Dick says: “I’ll deny using marijuana in the last eight years since my arrest.”  His lawyer asks: “Is that true?”  “Confidentially, no,” Dick replies, “but she can’t prove it.  If she wants me to take a urine test, I’ll flush my system.”  Okay, so what if the judge orders a hair follicle test?  “I’ll shave my  head.  My hair’s already short.”  Okay, so then the lab will just take hair from some other area of your body.  “Well then,” says Dick, “I’ll enter myself in competitive swim meets and shave my body.”

By the time Dick gets to court (with a new lawyer since the first lawyer in our hypothetical was too ethical to assist Dick in his scheme to defraud the court), his entire body is shaven head to toe.  In this condition, he is placed on the witness stand, where he coolly denies smoking marijuana.  And every inch of his shaven skin is evidence that he is lying–all the judge has to do is look at him.

So what should Dick have done?  Clean up his act, clean up his bloodstream, stop smoking pot, and tell the truth when he gets to court.  Why?  Because the truth–as they say–rings true.  Lies don’t.  Now, sometimes, people do get away with lying in court.  But do you really want to take that chance?

Just something to consider, if you ever find yourself confronting the question.

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