You were asked a simple question.

During your pre-trial testimony question and answer session known as a deposition. Doesn't matter whether it's a medical malpractice case, a car accident case or even a wrongful death case. At some point during your litigation, you will have to give pre-trial testimony.

The defense attorney asked you a simple little question.

"Have you ever been convicted of a crime?"

You immediately think that even if you were, it has nothing to do with your current case. In a way, you're right. In another way you're wrong. Very wrong.

You immediately blurt out "No. I've never been convicted of a crime."

You figure nobody will know the difference. Nobody will ever know. Nobody will ever care.

That thinking is so, so wrong.

The fact is that the defense will know. They will research everything about you. They will care. They will use this against you as if it the worst thing in the world.

Want to know how they're going to destroy your case now?

It has nothing to do with the merits of your current lawsuit. It has nothing to do with whether you are or are not entitled to compensation for your current case.

You might be thinking that I'm blowing this out of proportion. Nothing could be further from the truth. And that's where we begin our journey today.

You see, in a civil lawsuit where you are seeking to be compensated for the harms and injuries you suffered because of someone's carelessness, your credibility is the key to your case. Your truthfulness is of the utmost importance.

You were thinking that if you told a 'little white lie' that would never come back to haunt you. The reality is that it will. Big time. In fact, the defense attorney will make a huge deal about it during your trial. On cross examination. You won't see it coming. He'll set you up first.

"Mr. Jones, I need to ask you about your background...Have you ever been convicted of a crime?"

You answer "Never."

"That's wonderful," the defense attorney says earnestly.

"Are you sure?" he asks.

"Yes, I'm sure," you reply again.

"Is this your full name?

Have you lived at this address for the past 10 years?

Is this your date of birth?

Are these the last 4 digits of your social security number?"

What he's doing is setting you up. He's obtaining all the critical information contained within his criminal background check to make absolutely sure you are the right person his report refers to.

Then, he'll probably toy with you a little more...

"Mr. Jones, sorry to ask again, but I just want to make sure I have this say you've never been convicted of a crime?"

"That's right," you answer, now getting a little worried.

"Great. Then maybe you can explain this discrepancy that showed up when I did a criminal background check on you..."

Now the jury turns to look at you accusingly. They know what's coming and it's not going to be pretty. It doesn't matter what your excuse is. Lying to the jury is unforgivable and the defense attorney will replay this lie over and over again.

Here's the kicker.

There is a legal instruction that the judge gives to the jury at the end of the case called "Falsus in uno." It means that if you lie about one thing, the jury has every right to disregard ALL of your testimony because if you lie about one thing, there's a good likelihood you will have lied about other things as well.

You can be sure that the defense attorney will demand that the judge give this legal instruction in his closing remarks. In light of this obvious contradiction, the judge would be absolutely correct to give this instruction.

Remember when I said earlier that your past conviction and time served had nothing to do with your case? Well, that's true. It doesn't. However, the moment you tell that 'little white lie' and hope nobody will notice and find out, that destroys your credibility.

In a civil lawsuit here in New York your credibility is everything. When you start your trial, the jury assumes you are credible and believable. If you give them a reason to not believe you, they will. They want to believe you. They want to fight for the underdog.

However, the moment you have shown that you cannot be trusted, you have an extremely difficult hurdle to overcome that may prove fatal to your case.

What's the bottom line here?

Do not, under any circumstance tell that little white lie. It will come back to bite you in the butt. Instead, voice your concerns with your attorney during your preparation session for your pretrial testimony. Let him know when you first meet with him about your case of your deep dark secret and how to deal with it.

Then your attorney has some advanced notice of this problem and can explain to you how to properly address it.

Let me share with you a perfect example that happened to me not long ago.

I was representing a gentleman here in NY in a medical malpractice lawsuit. I ALWAYS ask every new client during our first meeting whether they have EVER been convicted of a crime. I make sure to write down their answer.

I asked my new client this question.

"Have you ever been convicted of a crime?"

His answer was "Nope. Never been convicted of a crime."

Great, I thought and then I wrote down exactly what he said.

Months later it's time for his pre-trial testimony where he was going to be asked questions by the defense attorney. During our preparation session I again confirmed that he had never been convicted of a crime.

During the question & answer session, the defense lawyer asks "Have you ever been convicted of a crime?"

My client blurts out "Yes, I have."

"What?? What did he just say?!!" I'm thinking.

The defense attorney has a sheepish grin knowing he just hit a nerve...mine.

"What were you convicted of?" He asks quickly.

"Sexual assault and rape," my client says even quicker.

"Holy sh*t!!" I'm thinking. What the heck was that about?

I call a time-out and drag my client out of the office. I then began berating him privately for his lack of candor with me. Frankly, I was furious. Why?

If he had told me beforehand, we could have strategized exactly how to approach this.

However, despite my client not telling me about this bombshell before his pre-trial testimony, he had enough common sense to do the right thing and tell the truth when he was asked this question by the defense attorney.

Now the cat was really out of the bag.

Did his prior conviction have anything to do with his medical malpractice case? Nope.

Did the fact that he served time in jail for a number of years have anything to do with whether his malpractice case had merit? Not at all.

Instead, it had everything to do with credibility.

Although my client lied to me at our first meeting and during our preparation session, he saved himself and his case by immediately answering truthfully about his prior conviction.

By the way, you might be wondering if this had any effect on settlement negotiations or defense strategy as his case approached trial. The answer is 'Yes'.

Had we gone to trial, I would have had to address this issue immediately with the potential jurors during jury selection. I would also have had to address it with the jury during opening remarks and again throughout the trial.

Doing that requires a confession...

"Ladies and gentlemen, I have a confession to make about my client. It's not a pretty confession. In fact, it's awful. Something you will cringe about. Something you will find highly offensive, but it's something I need to tell you about..."

Notice the buildup?

By this point the jury is eager to hear what my client did.

Once I tell them, I have the benefit of now explaining how that event has absolutely nothing to do with the facts and damages of this case. Nothing. Now, if I attack this first, this awful event becomes a mere footnote, despite the fact that the defense attorney will still try to use it to minimize my client's credibility and the damages.

I will again discuss this confession when I question my client on direct examination and also during closing remarks.


If you've got some deep dark secret that you don't want anybody to know about, my suggestion is to immediately tell your attorney about it BEFORE you actually start your lawsuit. It's confidential and your attorney will not be telling anyone else about it. Also, if he knows about it before you begin your case, he can properly strategize on how to deal with it during your case.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer