As trial lawyers, we are often confronted with opposing parties or witnesses who say things under oath that we know are not true. How do we convince a jury that our side’s version of events is true and accurate and that the other side’s version in untrue and inaccurate? In other words, how do we prove that someone who has sworn to tell the truth is actually lying? In real life, witnesses don’t often “crack” under cross examination and admit they were lying. That happens on TV, not in real courtrooms.
What we often do is look at the witness’ actions before and after the event they are testifying about to show that their conduct and words are inconsistent with their in-court testimony. The simplest example is a doctor or business person who testifies that they told our client a certain thing and our client either denies it or tells us that they were told the exact opposite. In the case of the doctor, the office notes or reports are an obvious place where the alleged statements should be corroborated. We recently confronted a situation where our client told us that a doctor told her she had disease X, and definitely did not have disease Y. She in fact had disease Y and did not get treated for it. The doctor testified that he told the patient she had disease Y and not disease X. Someone was lying. The doctor’s office notes proved that our client was telling the truth. While the notes did not outright say what the doctor told the patient, they were far more consistent with our version of events. In that case, it was fairly easy to prove who was telling the truth.
In many situations, individuals who are willing to lie under oath tend to go overboard. They will exaggerate their own truthfulness. We had a situation in which we were alleging that a young man was served alcohol at a bar while he was visibly intoxicated, and was in a fatal car accident shortly after leaving the bar. The bar owner testified that this simply NEVER COULD HAPPEN, that he trains his bar tenders so carefully and enforces a policy against serving intoxicated customers so ruthlessly that it is simply impossible that the young man was exhibiting any signs of intoxication while he was at the bar. This testimony “opened the door” for us to present evidence of other customers of the bar being served while visibly intoxicated. This evidence was not relevant to the issue of whether this particular customer was visibly intoxicated, but by over-selling his story, the bar owner made other customers’ visible intoxication while being served at the bar relevant. We were able to convincingly demonstrate through evidence that had no direct link to our case that the bar owner was probably not telling the truth. This led to a very favorable settlement for the young man’s family.
The search for the truth really is what the entire civil law legal system is all about. The examples provided in this article are pretty simple examples of how we get to the truth for our clients. Very often we have to look to outside information and evidence of other events to demonstrate who is telling the truth and who is not. It is one of the things that make civil trials so challenging and dramatic. People who take time out of their lives to sit on a jury really don’t like to be lied to. When we are able to demonstrate that our opponent is not telling the truth, the case is often won right then and there.