Jun 27, 2012

Every trial attorney will tell you that in the civil justice system, the deposition is the greatest tool to catch liars. A deposition is the pre-trial discovery process where attorneys can question adverse parties, witnesses, and experts while they are under oath. The questions and the answers are recorded by a court reporter, or by visual/audio recording, and then reduced to writing for later use in court or for other discovery purposes.

Technically, the purpose of a deposition is to learn information from the adverse party's witnesses so that there are no surprises at trial. However, the actual purpose of a deposition is to ask questions in a way that will trap the other side in an impossible position. If we can get the defendant to say something stupid or ridiculous on record during the deposition, it is a successful deposition for our side. On the other hand, if I can catch the defendant, adverse witness, or expert, in a lie, it is a VERY successful deposition. Truthfully, if the defendant is a liar, we want to prove he/she is a liar through the information/documentation in the case. Believe me, the defense lawyers are looking and hoping for the same thing.

Often, the attorney conducting a deposition will appear courteous, inquisitive, and even kind. But, when we have an opponent under oath in a deposition, much like the Frost/Nixon interviews of 1977, it is a game of cat and mouse.

To win a case at trial, your attorney must persuade the jury that your side is the most logical, most likeable, and most reasonable. Proving that the other side is a bunch of liars is the best way to win that battle. So, in every case, both sides do their best to prove that the other side is lying.

Even though I have practiced law in three different decades, I still remember my first day on the job as an attorney. My first day on the job included a tour of the office. During the tour, I was given detailed instruction in the use of the most cutting edge top of the line technology in the office—the fax machine. Times have certainly changed, but catching liars is still a good litigator's favorite sport.


A) The Day's Events:
In one of my earliest trials, I represented a client who was charged with committing a series of crimes. To combat these charges, my client got on the stand and told an impressive story about all the details of the day when she allegedly committed these crimes. She testified about her breakfast, her stroll to a video store, and her selection of two horror films (Child's Play and Bride of Chucky). She testified very specifically about the lunch that she made herself, down to the brand of chips. She testified that she had no means of transportation on that day, that she watched the two movies she rented, and that she was not even in the part of town where the crimes were committed.

Next, her boyfriend took the stand and testified that he had been with my client the whole day. The boyfriend then told an identical version of the day's events. The prosecution was stymied. In his closing argument, the only thing the district attorney told the jury was that my client and her boyfriend testified too perfectly. When it was my turn to give a closing statement, I got in front of the jury and spent a half an hour blasting every police officer and prosecutor that willfully dragged this poor innocent woman into court. After all, she was only guilty of having bad taste in horror films. When I sat down, the jury members were nodding their heads in agreement, and it was clear to me that the prosecution's case was over.

The prosecution had one more chance to speak to the jury before they deliberated. Before he got up to finish his closing statement, the hapless district attorney mindlessly searched through a cluster of documents. He eventually found a previously admitted court document that proved that on the very day my client and her boyfriend claimed to have spent a lazy day eating and watching movies in another part of town, they forgot to mention that they had actually made a court appearance in Denver District Court. As it turned out, the crimes that my client allegedly committed occurred a few blocks from the courthouse and within minutes of the conclusion of my client's court appearance. Not surprisingly, the jury concluded that my client was a liar and quickly found her guilty.

Documents carry more weight than a person's recollection. The story you tell better be consistent with the documents that exist. In other words, tell the truth.

B). The Resume:
Many years later, during a medical malpractice trial, I brought a medical expert to town to testify on behalf of my client. The expert gave strong, convincing testimony, blasted the defendant doctor's misconduct during a surgery, and called the doctor's conduct gross negligence. According to the expert's resume, he had exceptional educational qualifications and was a seasoned orthopedic surgeon. I thought we were in great shape.

Nevertheless, the expert's resume included two qualifications that the defense lawyer began to explore during cross-examination. First, the expert claimed that he had served as the director of orthopedic surgery for a certain medical school on the East Coast. Defense counsel produced a catalog from that from that medical school and showed the jury that the medical school did not even have an orthopedic surgery department. The school only had a director of surgery, and it wasn't my expert. Although at the time of his tenure, my expert was the only orthopedic surgeon on staff, it became obvious to the jury that my expert was falsely bolstering his resume by claiming that he had served as the chair of a nonexistent department. On its own, this little lie probably would not have been that big of a deal.

The second point of questioning was directed at the expert's current employment. My expert testified that he had taken a brief sabbatical from practicing medicine, but had recently decided to resume his practice. He claimed that he was in final negotiations to become the Chief of Surgery at the NYU School of Medicine. All of this sounded very impressive.

As the expert was speaking, I noticed a flurry of activity at defense counsel's table. Minutes later, the crafty defense attorney announced that his office assistant had just got off the phone with NYU. The office assistant found out that the Chief of Surgery position at NYU had been filled 18 months ago. Even worse, it turned out that my expert had not even applied for the Chief of Surgery position. Instead, my expert had only applied to NYU for a position as a night-shift emergency room physician. With joyful eyes, the defense lawyer informed my expert that he had been passed over for the emergency room position. Not surprisingly, a few days later, we lost that trial. I blame my lying expert.

No matter how educated or smart, a liar is a liar. If you can prove that someone is a liar on one subject, that person immediately loses their credibility on every subject.

C) I'm not Vackoff. Are you?
I took a deposition of a negligent driver who claimed he was driving his neighbor's car when the car accident happened. This defendant claimed that he was a shade tree mechanic and that he did not know the neighbor very well (actually, he said his father knew him and that he never actually met him). He testified that the neighbor's name was Vackoff. According to this defendant (who had a different last name), Vackoff (the neighbor) asked him to take a look at his car. During the test drive, the crash happened.

In the middle of the deposition, as I was thumbing through my investigation folder on this defendant, I noticed that there were some documents showing that this defendant might have used the surname "Vackoff" as an alias. With this knowledge, I asked him if it was true that a man he didn't really know just happened to have the same surname that he had used in the past. He denied it. In fact, he denied it adamantly. At that point, I knew I had him.

After the deposition, I had my staff locate records that confirmed that the defendant changed his name to Vackoff a year before the car crash. His reasoning was that Mr. Vackoff was more of a father to him than his father ever was.

To this day, I still don't know the back story. But, once we disclosed to defense counsel that her client had lied, their defense fell apart, and they paid coverage limits. Without the lie, the case would likely not have been worth that much.

LESSON LEARNED: No matter how silly or inconsequential the lie might seem, all exposed lies do damage.


A) Facebook:
We have had our share of victories using Facebook research, as well as some real setbacks for our clients.

In one case, we found out that a drunk driver who had killed a mother in a car crash was posting details and photos about his drunken partying ways on his Facebook page months after the fatal collision. During his deposition, the defendant attempted to feign remorse, but his Facebook page told a different story.

We have also had numerous clients detail the sadness and struggles of their post-accident existence in depositions, only to be confronted with recently-posted Facebook photos of them smiling, drinking, and going on vacations. When my clients posted these photos, they probably never expected that they would be used against them in their personal injury cases.

We recently had a client who wrote about her love of money on her public Facebook page. When I see this stuff, I wonder if anyone understands how that kind of information can be manipulated by even an average insurance defense attorney.

LESSONS LEARNED: If you have a Facebook page, you should assume that anything not private will be made public during your deposition. To be more blunt, shut down your Facebook page! In truth, the only one enjoying your Facebook page is the defense lawyer who is planning to barbecue you at your deposition with your words and photos. I mean it shut it down!

B) Card-Swiping Technology:
Because I practice in Colorado, my injured clients regularly claim that their injuries prevent them from using their ski passes. I never thought that ski passes could be used against my clients until a clever defense attorney subpoenaed my client's ski pass information. In this case, my client claimed during his deposition that he had not skied that season because of his injuries.

Unfortunately, the records showed that my client had used his ski pass 35 times in the past two months. When my client claimed that he may have gone to the ski area, but did not go down any runs, he was again exposed when defense counsel provided records showing that my client had completed runs on each of those individual ski days. Case closed—my client was clearly lying.

In another case, we were able to use my client's gym pass membership card to prove that a doctor was falsifying his medical reports. The defendant doctor claimed that my client refused to stop going to the gym after a surgery. Similar to the ski pass swipe data, we were able to show that my client fully complied with the doctor's orders by not going to the gym for six weeks after the surgery. In that case, it was the doctor who was exposed as a liar.

LESSON LEARNED: In this modern age of data capturing, any activity that involves the use of a swipe card produces mounds of data. At the end of the day, it is our clients' duty to tell the truth so that their testimony does not contradict the gathered data.

C) Golf/Bowling/Softball Tournament:
Golfers, bowlers, and softball players concern me more than ever. Often, my clients claim that their injuries have halted their golfing, bowling, or softball endeavors. However, the internet is loaded with details about every amateur league, player, and event. We recently represented a man who told a very compelling story about how his injuries had prevented him from playing golf. Unfortunately, my client did not count on defense counsel going on the internet and finding the details of a golf tournament in which my client had recently participated.

LESSON LEARNED: The internet and all of its uses ensures that there are truly no private moments. Everything is being document, recorded, and posted on the internet. Be truthful or be prepared to get caught in a lie.

At Anderson Hemmat we know that one of the keys to victory in a personal injury case is to expose the defendant as a liar if he/she is being untruthful. As experienced litigators, we know how to utilize the tools available to us to identify and catch defendants in their lies, especially if they are trying to fib their way out of compensating their injured victims. If you have been injured in an auto accident and the at-fault driver is lying about what actually happened to cover his tracks, please call and speak with one of our attorneys today.


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