Go to navigation Go to content

You tell a little white lie during pretrial testimony and the defense makes you out to be a liar. Find out how that little fib can destroy your entire case.

You were involved in an accident and now decide to bring a lawsuit seeking compensation for the harms and losses you suffered because of someone else's negligence.

During your pretrial testimony, known as a deposition or an examination before trial, you are asked a series of questions that you really don't pay much attention to. Your lawyer prepared you before being asked these questions and you're confident that there's nothing you could say that could hurt you.

The defense lawyers asks you these questions:

“Mr. Jones, were you ever convicted of a crime?”

“No.”

“Mr. Jones, have you filed tax returns for the past three years?”

“Yes.”

“Mr. Jones, have you declared all of your income that you made in the past three years?”

“Yes.”

The defense attorney then proceeds to ask you hours of questions about your accident and the injuries that you suffered. It's not until your case has proceeded to trial and you are being cross examined by the defense lawyer do you realize what you have done.

Those seemingly innocuous questions that you were asked during your pretrial testimony are now coming back to bite you in the butt. What you thought had nothing to do with your case, now has everything to do with your case.

The reality is that your credibility is everything when you bring a lawsuit seeking money for the injuries you suffered because of someone else's carelessness.

During your question-and-answer session that was given under oath in your attorney's office, when you were asked whether you are ever convicted of a crime, you immediately thought in your mind that this has absolutely nothing to do with your current accident case and therefore you answered “No.”

What you failed to tell your attorney was that six years ago you pled guilty to a crime. You were convicted. You were sentenced. Although your criminal matter has nothing to do with your accident matter, the fact that you have now lied under oath about something that was insignificant will come back to haunt you.

The fact that you have now lied about it will become a significant point of contention during your cross-examination and during closing remarks by the defense.

It turns out that you did not file your taxes for three years before your accident and in fact had issues with the IRS that you are now trying to deal with. In addition, your tax returns are inconsistent and do not reveal that you declared all of your income. That's a problem that the defense attorney will bring out when he questions you on cross-examination.

At trial during cross-examination the defense attorney will ask the following series of questions:

  • “Mr. Jones, have you ever been convicted of a crime?”
  • “No I haven't.”
  • “Really? Six years ago you did not plead guilty to the following crime?”
  • “What does that have to do with this accident case?”
  • “Mr. Jones, I ask you again, six years ago did you plead guilty to the following crime?”

No matter what your answer is you will have contradicted what you had testified to years earlier at your pretrial testimony. Something so insignificant is now going to be used against you in a dramatic way.

At the end of the trial the defense lawyer will ask the judge to instruct the jury about liars. There is a Latin phrase that the law uses for this particular instruction. It's called “Falsus in Uno.”

What that means is that the jury will be instructed that if they find that a witness has testified falsely about one thing, they are permitted to disregard the entire witness's testimony. That means that if the jury finds you have lied about one thing they can also find that you've lied about everything and disregard all of your testimony.

The defense lawyer will be sure to make you out as a liar. Here's how.

“Ladies and gentlemen, Mr. Jones told us one thing during his pretrial testimony and came into court and told us another. We call people who tell inconsistent truths liars. People who lie and fib about the smallest things, you wonder what else they are lying about. You wonder why he would go to such great lengths to lie about something so insignificant and something having nothing to do with this particular case.

Ask yourself why someone who comes in here asking for money for his injuries would feel the need to lie about something that happened in his past that is totally unrelated to this particular lawsuit? The judge will tell you shortly that if you find that a witness has testified falsely about one thing is totally within your right to disregard all of his testimony.”

There are two important points to this story.

The first is that it was the attorney's obligation to ask his client whether there was anything in his background including prior convictions or prior sensitive information that could somehow trip him up. The second is that the client would simply have been better off admitting his prior conviction and telling the truth which could then be dealt with by explaining it away. Once he has contradicted himself, you now have to deal with a liar who will have a tough time overcoming those inconsistencies at trial. 

To learn even more about telling a fib during your lawsuit, I invite you to watch the video below...

 

 

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer