In Your Deposition, Be Frank, Not a Weiner

As someone who writes on a regular schedule – every Monday and Thursday – I often never know what I will write about until the deadline becomes an almost palpable looming presence. The hardest part for me is actually selecting a topic. Once I have done that, the post almost writes itself. Fortunately, current events often have a way of suggesting topics for me. So, thank you Anthony Weiner.

In the home inspector training at the Law and Disorder Seminar, I spend a good amount of time on the legal process. Part of that is spent on the Discovery phase of a lawsuit which is when parties “discover” what evidence the other parties intend to present in order to prove their claims or defenses and one of the most productive discovery devices is the deposition.

Lawyers take depositions, which are interrogations of witnesses, taken under oath and recorded by a court reporter, for three distinct reasons. The first reason is to lock the witness into his story so that he doesn’t tell a different story at trial or, if he does change his testimony at trial, so that the lawyer can use the witness’s prior inconsistent testimony to impeach his credibility. The second reason is to ascertain the witness’s credibility. Does this witness tell a story that is believable? The third reason is to ascertain the witness’s likability. Is this witness someone whom a jury is going to like and – more importantly – give money to? Or if the witness is a defendant, is she a witness that a jury will be reluctant to hold culpable?

While I recognize that this may be difficult for some readers to believe, sometimes witnesses will lie. Even when they are under oath. Indeed, lying under oath is so commonplace that I can scarcely recall having ever taken a deposition when a deponent did not give at least one response to a question that would prompt my client to advise me – in a stage whisper, of course – that “He’s lying!”

I was always tempted, in those instances, to tell my client “Yes, I know he is. If he were telling the truth, we’d be in a lot of trouble.” And, I was always thrilled whenever a party opponent would lie under oath because it is often quite easy to demonstrate that a witness could not possibly be telling the truth and because nothing is more damaging to a witness than to be caught in a lie. Nothing. Here’s why.

At the end of every jury trial in this nation, the jury is given instructions on the law to guide it in its deliberations. One such instruction is on the credibility of witnesses. This instruction is known by the Latin expression that distills its meaning: ”Falsus in uno, falsus in omnibus” which means, literally, “false in one thing, false in everything.” If a witness will lie about one thing, he will lie about everything.

The actual instruction goes something like this: “If you find that a witness has lied during his testimony, you are entitled to disregard the entirety of his testimony. You do not have to do that but you may.” And do you know what juries do? All the time? They disregard the entirety of his testimony. And it’s a good thing that they do because our entire legal system would disintegrate, if juries permitted witnesses to lie under oath without consequence.

So, if you ever have to give a deposition or testify at a trial, always tell the truth. It is far better to forthrightly acknowledge a fact that may be harmful to your case than to have your entire testimony disregarded. Truthful deponents also score very high on likability indices while bald-faced liars are generally despised.

Ask Anthony Weiner.