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Still the Best Policy

December 12, 2013

 

 

"Honesty never damages a cause that is just."
-- Mahatma Ghandi

Recently, a client mentioned to me a fact about his case that could reflect poorly on him. He asked me if, when testifying about it, he could say, "Well, the reason was X." My question: "Is X true?" He cast his eyes down, and admitted it wasn't. I told him he couldn't testify that it was.

Putting aside any ethical or moral issues, there are lots of practical reasons to be honest in litigation.

Many people say that the law isn't about a search for the truth. I think it is, and to prove it, there are plenty of ways the legal system seeks out and punishes the untruthful.

1. The Law's Gonna Getcha 

For example, people or companies that file for bankruptcy have to list all of their assets so that the court can make determinations about their finances. Sometimes they don't list a pending lawsuit as an asset, even though they have a possibility of making money at it. If the civil court decides the omission was inadvertent or a mistake, no problem. But if the civil court decides it was intentional, it can throw out your lawsuit using a rule known as "estoppel." The judge isn't even required to give you a chance to explain yourself.

Another example: a couple gets divorced. During the proceedings, the husband states, under penalty of perjury, that he has no stock in the company where he's the CEO. When he's later fired, and sues for his millions of dollars in stock, the company shows him his prior statement in the divorce court. The CEO is out of luck.

In other words, the legal system requires honesty, and it imposes severe penalties if it finds someone hasn't lived up to that standard.

2. No One Will Believe You

This isn't just finger-wagging -- it's practical advice from a lawyer who has had clients torpedo their own cases by being dishonest. You have to assume the other side knows all the bad stuff about you, because they probably do. If you're caught in a lie, you may as well write the other side a big check, because it's going to cost you in terms of the value of your case.

In any employment case, the most important witness is always the plaintiff/ex-employee. Good facts are of course necessary, but it's also critical that the jury like you. And they will often hold you to a higher standard than they hold themselves, requiring a high degree of honesty before they will find in your favor. It's unfair, but this post is all about the practical benefits of honesty, not fairness.

3. Your Lawyer Will Look Bad

I always tell my clients: Tell me the bad facts. Don't let me be surprised by the other side. I can deal with any set of bad facts. What I can't deal with is being shown by the other attorneys that my client doesn't tell the truth.

When you hire a lawyer, you are depending on that person to bring about the best results for you. Your lawyer can't do that if you don't discuss everything, both good and bad, about your case. Hiding facts or lying about facts to your lawyer not only doesn't do any good -- remember, the other side probably knows about your concerns anyway -- but it will hurt your case by making it look like your lawyer doesn't understand the issues.


Whether the law is actually about the search for truth or not, it certainly tries to be, and it is unforgiving to lies both big and small. Owning up to bad facts, and being perceived as honest, just works a lot better.

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