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When Lawyers Lie Author(s): Elaine E. Bucklo Source: Litigation, Vol. 33, No. 2, SECRETS & LIES (Winter 2007), pp. 3-6 Published by: American Bar Association Stable URL: http://www.jstor.org/stable/29760616 . Accessed: 15/06/2014 15:39 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation. http://www.jstor.org This content downloaded from 62.122.79.78 on Sun, 15 Jun 2014 15:39:26 PM All use subject to JSTOR Terms and Conditions

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Page 1: SECRETS & LIES || When Lawyers Lie

When Lawyers LieAuthor(s): Elaine E. BuckloSource: Litigation, Vol. 33, No. 2, SECRETS & LIES (Winter 2007), pp. 3-6Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29760616 .

Accessed: 15/06/2014 15:39

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

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Page 2: SECRETS & LIES || When Lawyers Lie

From the Bench

When Lawyers Lie

"Lawyers lie all the time." That is a statement by a respected lawyer who

complains that judges do not do enough to stop lawyers from lying. Other

lawyers agree that they have had too

many experiences in which their oppo? nent regularly lies.

I bristle at movies or literary depic? tions of lying lawyers. In my experience, most lawyers do not lie. I

practiced law with lawyers who would not have considered lying. I would ven? ture to say that most of my lawyer friends would find lying on behalf of a client equally abhorrent. And fortu?

nately, most of these people agree that

they have only rarely run into a dishon? est lawyer (although this is not true of

witnesses). But the movie depictions of

lying lawyers may not be as far from

reality in some cases as we would like to think.

A stereotypical, if extreme, example was the lawyer in Liar Liar. In the first scene, a five-year-old child responds to a teacher who asks, "What does your father do?" with the statement, "He's a liar." The teacher learns that he means

lawyer, but the father is also a liar. The

pun on words is cute, but it is also the theme of the movie. When the child's

magic birthday wish compels the

by Elaine E.Bucklo U.S. District Court

Northern District of Illinois

lawyer/liar to tell the truth for 24 hours, he is totally stumped. He cannot deal with colleagues, personal relationships, or the court case he must try that day. He tries to get his son to take back the

birthday wish, telling him that

"grownups need to lie," that no one in the adult world could survive if he

always had to tell the truth. The father wants to be able to lie

again because he has coached his client to lie in court and he believes that is the

only way he can win his case. He does not tell his son this. Instead, he gives as an example of a "necessary" lie the cir? cumstance of how his former wife looked when she was pregnant and how he lied to reassure her she looked ter? rific. His son responds, in essence, "But

your lies hurt me." A lie that only makes someone feel better and hurts no one is

surely different from a lie that harms someone or has the potential to do harm. It can still be argued that even white lies hurt the person who tells them, because either the liar's con

science eventually cringes at the untruth or telling lies that do not hurt

may make it easier to tell ones that do. Whether or not telling your wife she

looks wonderful on a bad day is accept? able, is lying in the practice of law ever

justified? I recently heard a lawyer argue that of course lawyers lie. He

gave as one example his sitting in a set dement conference with a judge and

insisting he was at the limit of his set? tlement authority even though he knew he could offer more. To him, lying in that situation is a practical necessity. I do not think so, and I know that not all

lawyers lie in that circumstance. For one thing, it is pointless. Whether or not there is greater settlement authority, a

judge who thinks a higher figure is nec?

essary or appropriate will simply tell the lawyer to seek more. And lawyers whom I respect, rather than tell a lie, will sometimes say that they are uncomfortable providing the highest numbers they have available. If the case settles at a higher number after a lawyer protested that he had reached his limit and the judge thinks the lawyer was not

telling the truth about his authority, the

only effect will be to leave the judge with a memory of a lawyer whom she will not trust the next time. Lying to the

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Page 3: SECRETS & LIES || When Lawyers Lie

judge in that situation also violates a

lawyer's duty of candor, which takes

precedence over the duty to be a vigor? ous advocate. E.g., Cleveland Hair

Clinic, Inc. v. Puig, 200 F.3d 1063, 1067 (7th Cir. 2000).

The real-life lawyer who argued that

lawyers at times need to lie gave another example in which a lawyer hires an investigator, who presumably tells lies to obtain information?but at the lawyer's request. Finally, the lawyer noted a third example, "sting" cases in which the government in all kinds of situations uses undercover agents who

pretend to be something they are not. We judges actually tell juries that the

government sting operation is an

acceptable law enforcement tool, justi? fied as necessary to trap criminals who otherwise would not be caught. In the latter two situations, it can be argued that the lie is told only to obtain the true

facts, and that the facts will determine the outcome.

That kind of lie is not the lying that

lawyers complain about, either in con? versation or in motions filed before a

judge. Nor does it justify other lies. The Liar Liar lawyer thought he had to lie (or have his client lie under oath) to win. Most of us would agree that is not an acceptable excuse. Indeed, the lie he wanted to be able to procure? under oath?would violate criminal law as well as ethical and civil statu?

tory proscriptions. Sadly, too many lawyers have their

own stories. Some lawyers are so outra?

geous that their way of practicing law

appears similar to the Liar Liar plot. A friend remembers a lawyer in a pretrial conference insisting that my friend's client in a divorce case did not have dia? betes and was simply trying to stall in

seeking a continuance. The fact that he did have diabetes was so easily verifi? able (and not denied by the wife) that

you have to wonder why the lawyer would make such a statement (although this was apparently typical of the

lawyer). The same friend remembers another case in which the opposing party kept insisting, at every meeting before the judge, that her client had taken a valuable ring. There was no

way to disprove this, and although the

allegation probably did not affect the final outcome, it at least muddied the waters. The accuser's attorney echoed the allegation. Some time after the final

judgment, my friend was in the oppos

ing attorney's office, where a secretary commented on the large ring the accuser had worn during visits to the office. It was clear that the accuser's

attorney had known of, and permitted, the lie.

The more common issue confronting lawyers and judges in federal courts concerns discovery, most often, with?

holding documents. We also see claims of misrepresentations in depositions and court filings. Sometimes lawyers do stand before a judge and lie.

Judges do not condone lying. If

lawyers get away with lies, it is for two reasons. First, often we do not know if a misstatement is intentional. A col?

league notes that she sees times when

lawyers at least stretch the truth, such as

by telling her she has to reconsider a

ruling because a recent appellate case shows she is clearly wrong. When she reads the case, she knows it is the

lawyer who is wrong. But is the lawyer lying, merely misinformed by an asso?

ciate, or simply stupid? Because the

easy solution is to deny the motion without sanctions, that is what she does. All judges face many occasions when we are sure a witness or a defendant in a criminal case has lied on the stand or in an affidavit filed with the court. The Rules of Professional Responsibility forbid a lawyer from knowingly allow?

ing his client to lie. There are times when a witness's testimony is so pre? posterous that we wonder how the

lawyer can permit the client or witness

to testify to the alleged fact, or to argue based on the perjured testimony. It would be very difficult, and involve

complicated and perhaps impermissible intrusions into the attorney-client privi? lege, however, to attempt to make a factual finding about what the lawyer believed.

Judges do not like having to deal with motions for sanctions because they are so time consuming. Determining whether a lawyer is telling a lie can take hours or even days of a judge's and law clerk's time. I once referred a case of

lawyer misconduct to our state's lawyer discipline commission. The result was that several years later, I had to testify in the matter despite the fact that the referral was based on facts I had stated in a written opinion, which had not been appealed. I had to find the file, review notes and briefs, go over the matter with the lawyer for the agency, and, of course, testify. I appreciate the

lawyer disciplinary commission's tak?

ing the complaint seriously. But if I ever decide to make such a referral

again, I will remember that the time

spent preparing for that hearing was in addition to many hours spent in hear?

ings, research, and writing opinions in the matter.

Lawyers who lie presumably think

they can get away with it. In large cities in particular, I assume such lawyers believe they are unlikely to come in contact with the opposing lawyer in another case and, if they even consider

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the possibility that the judge will dis? cover the lie, believe the judge will not remember it at their next encounter.

Lawyers and judges talk, however. There are a few attorneys who are noto?

rious in my courthouse for misconduct in various cases; any allegation against those attorneys is taken very seriously. Furthermore, judges in federal court who are forced to spend time on a

charge of misconduct often write opin? ions, which are available for any lawyer or judge to find in the next case. Even if the judge does not do the research, she

may have a good memory. A colleague tells of a lawyer who asked for a contin? uance because of the death of his mother. The judge remembered that the

lawyer had asked for a similar continu? ance ten years earlier, with the same excuse. This lawyer was lucky. The

judge just denied his motion after ask?

ing the red-faced lawyer if he had two mothers.

What can lawyers do both to prevent a dishonest opponent from engaging in misconduct in his case and to obtain a

remedy if it occurs? I recommend sev? eral steps.

The first step is preventive. Most of us learn as young lawyers to put things in writing. I was told that essentially all conversations with clients, witnesses,

and opponents should be memorialized.

Beyond that and rather obviously (yet lawyers neglect to do it), any agree?

ment, as well as disagreements that counsel knows could become a subject of contention, should be noted in a let? ter and sent to opposing counsel. If counsel says she will produce docu? ments A and B in one week, confirm it. If counsel says there are no such docu? ments, confirm this and insist she

provide an affidavit saying that a thor?

ough search was made and no documents exist. If the documents are

important and you think they should exist, ask more specifically for the names and positions of the persons who made the search. If counsel says she will not produce the documents, write a letter confirming that conversation.

Adherence to this simple rule

prevents honest misunderstandings, discourages dishonesty, and provides crucial documentation to present to a

judge if a problem arises. It is never a waste of time or money to take the time to write a letter confirming a conversa? tion. It is negligence to fail to do so,

given the reality of honest memory

lapses and the possibility of deliberate obfuscation.

The second step is also preventive. Make a record of all documents you send and receive. This can be a lot more

work, but it is in this area that I see a lot of problems. Lawyer X says she never got that document, or that the documents she produced included

something that lawyer Y says was never

produced. If you receive 1,000 docu? ments, have someone promptly record

each, with Bates numbers and identify? ing information; if you send 1,000 documents, make a record of each. And send both lists to opposing counsel? this is what you got, this is what you sent. When someone later claims a doc?

ument was produced, it is often

impossible for a judge to decide whether it was sent and lost (or over? looked in preparing for trial) or never

produced. With concrete evidence like a

list, it is easy to verify a claim. The third step to avoiding problems

caused by a dishonest opponent is never to let missing discovery slide. An argu?

ment that judges often hear is that the other side agreed to a continuance or never objected to nonproduction until after the close of discovery. Follow up, politely. And if necessary, bring a timely motion. If you believe discovery that should exist is missing, notice deposi? tions of persons who are likely to have

knowledge. If you do not know who to

depose, serve more written discovery and find out.

If you are sure you are facing lack of disclosure or actual dishonesty and addi? tional discovery within a company does not solve the problem, consider other

options. People who have left a company are less likely to lie simply to help their former employers. In addition, liars

(whether attorneys or management within a company) are unlikely to act

differently in other cases. Is there a record of the lawyer's having been sanc? tioned in other cases? What were the circumstances? Has the company (or individual) been involved in other litiga? tion? I know of a number of cases in which a company took one position in one case and an inconsistent position in another (in contexts that cannot be rec?

onciled). Documents may have been disclosed in another case that are claimed not to exist in your case. The

point is to try to find all the facts you can before you seek relief from a judge. Sometimes, in the face of inconsisten

cies, a lawyer will decide not to pursue a lie. It makes sense to confront a lawyer

with facts that will show misconduct before undertaking a formal motion before a court. We once convinced an

attorney to drop a suit he filed in bad faith by sending him a letter outlining the facts and informing him that we would pursue an action for abuse of

process if the case was not dismissed. In some jurisdictions, court rules, in partic? ular Federal Rule of Civil Procedure 11, require that an attorney serve his oppo? nent with a proposed motion for sanctions and give him an opportunity to withdraw an offending pleading before the motion is filed.

If all else fails, remember the old say? ing about picking your fights. This is, of course, a matter of judgment. There is not an easy answer to the question of when to file a motion seeking sanctions. The Advisory Comments to Rule 11 say that "Rule 11 motions should not be

made or threatened for minor, inconse?

quential violations." Fed. Civil Jud. P. and Rules (rev. ed.), at 82. An attorney faced with consequential lies in briefs or court obviously must take action to counter them. Motions that can be resolved ahead of time should not be deferred until trial. But there is another rule: Don't wear out the judge?another way of saying that, before complaining, make sure you have done everything possible to avoid involving the court and that you have all your facts in order.

Judges want to believe that attorneys are ethical and responsible officers of the court and want to decide cases on their merits; if we must instead deal with

allegations of misconduct before we get to the main issue, make sure it is worth the effort. Do not run into court before

you have to. Judges dislike whining. If the complaint sounds like "Mommy, he took my ball," we are not as likely to

give sincere attention to a later, more serious complaint. If you have to seek help or sanctions from a judge,

maintain a mild manner and present unassailable evidence.

Despite the above advice, in some cases the only way to prevail against an

opponent who breaks the rules is to be

persistent, even at the risk of annoying the judge. Years ago I was asked to pro? vide backup assistance for a trial on a case in which there had been a lot of dis?

covery problems. We were trying the case in another city, and my job was

mostly to do research at night. I

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Page 5: SECRETS & LIES || When Lawyers Lie

watched the testimony unfold before a federal judge. My partner was certain, as a result of discovery early in the case and simple logic, that witnesses on the other side were lying. He was prevented from obtaining discovery that would

prove this, however, by rulings from the

judge, who believed the opposing lawyer's statements that we were delay? ing trial by seeking too much discovery. In the course of the trial, my partner convinced the judge that the stories

being told on the stand were inconsis? tent with statements made in discovery. The judge adjourned the trial and allowed us to do additional discovery. Still, some of the requested discovery was not produced, and we were told we would have to go through mountains of documents to find the ones we wanted.

My partner persisted. The judge eventu?

ally dismissed the case as a sanction for the misconduct by the other side. See Penthouse Int'l, Ltd v. Playboy Enters., Inc., 663 F.3d 371 (2d Cir. 1991).

There were a lot of lessons from that case: Start your discovery early (crucial information was disclosed before the other side adopted a strategy of nondis?

closure); follow up discovery with more

discovery; take depositions of people who have left the company and are less

likely to cover up. Above all, if the case is worth enough (this was a fight between two competitors), be persistent. The difficulties in getting at the truth

through the wall of resistance were so

great that a lot of lawyers would have

quit the fight. My partner refused to do so. It was expensive, but the other side

eventually had to pay the costs.

Finally, an attorney cannot hope to

prevail in a case with a dishonest oppo? nent unless she conducts her own

discovery and pretrial and trial prepara? tion ethically and without room for an

opponent to attempt to turn the tables. In

my experience unethical opponents often

try to avoid responsibility by shifting focus to the conduct of the complaining lawyer. In such a situation, the best way to avoid having a judge throw up his hands and do nothing is to make sure

(and document, of course) that the oppo? nent has nothing to complain about. I react positively, and I think most judges do, when I can see that one side has

timely produced discovery (this does not preclude legitimate, timely, reason? able objections); been patient in dealing with the other side; and been honest and reasonable in its own arguments to the court. I often hear lawyers complain that the judge thought both sides were

being unreasonable and so did nothing. I am sure there are instances in which a

busy judge is fooled by an invalid com?

plaint into doing nothing about real misconduct. But a lawyer can ensure there is no legitimate basis for the judge to ignore her complaint.

If there is as much lying by lawyers as lawyers claim, it may be that judges are nevertheless not doing enough to deter bad lawyers. The late Judge Hubert Will argued that judges should be more involved in monitoring lawyer misconduct and unafraid to use Federal Rule 11 in appropriate cases: "We should no longer be willing just to sit up there and, when somebody commits a

foul, call foul and give the other side two free throws. Judges need almost to treat it personally." Vol. 20 No. 1

PHI

Litigation at 29 (Fall 1993). Judges say, however, that they do not often get

motions seeking sanctions for lawyer misconduct. In federal court, lawyers and judges have a variety of tools avail? able to remedy sanctionable conduct.

They include Federal Rules 11 and 37 and the inherent power of the court under 28 U.S.C. Section 1927. Sanctions under any of these pro? visions may include attorneys' fees or, in appropriate cases, dismissal or default. E.g., In re Thomas Consolidated Industries, Inc., 456 F.3d 719, 724 (7th Cir. 2006) (court of appeals affirmed dismissal of case under Rule 37 after

lawyer lied about when he had tendered

discovery, agreeing that dismissal was

appropriate in cases of "willfulness, bad faith or fault."). Federal Rule 60(b) also authorizes the court to set aside a judg? ment on the basis of fraud or other misconduct. That rule does not require proof that the case would have come out differently in the absence of mis? conduct, but only that "it affected [the lawyer's] ability to present his case." Ty Inc. v. Softbelly's, Inc., 353 F.3d 528

(7th Cir. 2003). Lawyers and judges are the keepers

of the integrity of the judicial process, which is fundamental to our democracy. The importance of candor by lawyers, and the necessity to insist upon it, is well stated in United States v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th Cir. 1993):

Our adversary system for the reso? lution of disputes rests on the unshakable foundation that truth is the object of the system's process which is designed for the purpose of dispensing justice. However, because no one has an exclusive

insight into truth, the process depends on the adversarial presen? tation of evidence, precedent and custom, and argument to reasoned conclusions?all directed with

unwavering effort to what, in good faith, is believed to be true on mat? ters material to the disposition. Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes the

validity of the process.

Contrary to popular fiction, I think most lawyers are very honest, perhaps more honest than the average citizen. But we as judges need to take seriously the times when a lawyer is not. iD

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