I wonder why 90% of judges refused to take affirmative action against lawyers who file papers that contain objectively, unquestionably false assertions of fact — assertions that the attorneys filing them had to have known were false.

I think the legal profession, the justice system and the world would benefit immensely from judges actually making this matter.

I know my practice would, because I don’t lie for my clients.  True, to some extent it’s a good sign when the other side starts to “misrepresent the record” or the facts or the law or, well, otherwise LIE.  It means my hunches were right, I’ve got their backs to the wall, they’re reduced to this.  It’s useful information to me.

But why is “this” even an option?  In most courtrooms lawyers can lie, if not with impunity, still at fairly negligible risk.  And of course it handicaps my ability to achieve a just result for my client if the other side perceives that it can lie and get it away with it.

I’ll tell you a short story which you might think shows the opposite of what I’m arguing for here, but it doesn’t.

In one case I’m involved with, we have a judicial officer who is a tad taken with himself.  He sees every dispute between counsel for the parties as an opportunity to crucify one or the other of them.  There are no grey areas, no reasonable interpretations of language or law that could depart from his.   I long ago gave up on approaching this judge with requests to “help both sides work out this issue,” a problem-solving mechanism most judges urge lawyers to use when they get to a sticking point.  No — this former prosecutor does not understand the meaning of any of those words (“help,” “work out” or “both sides”).

So, the story.  I was in court along with an associate, and he had the floor as both sides were walking through who said what to whom and when about some discovery issue.  We reached a point where my associate and the other side had divergent recollections of what had happened.  So this judge, out of nowhere, orders my guy, a fairly junior lawyer, on the stand, and then tells the other guy, who was every bit as stunned as we were, to cross-examine his own adversary, under oath, about what happened!

It was a travesty — and this was in federal court!  Not only this:  When my adversary — who didn’t have the spine, or presence of mind, or whatever, simply to refuse to take part in this circus — failed to get the “gotcha” moment the judge was looking for in this unplanned and improper cross-examination, the judge himself jumped in and, interrogation-style, took over the “cross,” cornered my guy and “got” what he wanted.

I will never forgive myself for letting this happen, by the way.  But I was so stunned by it.  I’d never seen such a shtick in 20 years of law practice.

Well, fool me once, shame on you.  Fool me twice, shame on me.

We were later in court again.  And this judicial gent pulls the routine again — only this time he tells me to get on the stand!  And while I had not exactly planned it out, I had thought about what would happen if he tried this again.  The question was whether my adversary, i.e., the attorney himself, should be deposed on a certain subsidiary but relevant topic.  And this is how it went:

THE COURT: Mr. Adversary, do you want to be deposed?

MR. ADVERSARY: I don’t think — I haven’t — first of all, I’m not sure when Mr. Coleman spoke to me about it.

THE COURT: But when did — Mr. Coleman, when did you speak to him about it?

MR. COLEMAN: We spoke about —

THE COURT: When did you say, “I’d like to depose you. Are you willing to do it?” When did you do that?

MR. COLEMAN: I didn’t say that to him.

THE COURT: Okay. So when did you discuss with Mr. Adversary your desire to depose him?

MR. COLEMAN: When we had our meet and confer.

THE COURT: When was that?

MR. COLEMAN: That was after last year and we — and that was among the topics discussed was whether or not we — it would be appropriate to depose —

THE COURT: Is that true?

MR. ADVERSARY: That simply never happened.

THE COURT: Okay. Let’s have a hearing right now. Get on the witness stand. No, no, no. Mr. Coleman, come up and state under oath what you’ve just told me and then I’ll allow you to be cross-examined on the subject; you’ll cross-examine Mr. Adversary on it; and I will make findings. And if I make a finding that somebody has committed perjury you’ll refer you to the United States Attorney’s Office. Shall we do that?

MR. COLEMAN: If the Court insists, I will do it.

THE COURT: Well, it seems to me that I would have to have a hearing like that if I was going to proceed on your motion. No?

MR. COLEMAN: No, I don’t think so at all. I don’t think it’s necessary for me to have even actually asked him or even to have discussed it.

THE COURT: I don’t care if it’s necessary or not. You’ve made a representation to me that you did so.

MR. COLEMAN: Yes.

THE COURT: And you’re prepared to rely on that?

MR. COLEMAN: I’d never say anything that I wouldn’t say under oath.

THE COURT: On the stand, please.

MR. COLEMAN: I’m going to proceed under object — under objection.

THE COURT: Well, when you say “objection” do you wish to — you make an objection to preserve your ability to seek relief. What relief will you seek on the basis of it? In other words, is it something where you would like me to stay [unintelligible] that you can seek review from the assigned District Judge as to whether it is clearly erroneous or contrary to law to have you take the stand to satisfy me that a — as to which side is correct in a factual dispute?

MR. COLEMAN: No.

THE COURT: Okay. So what is the objection?

MR. COLEMAN: The objection is in — depending on how the proceeding ends up going. I’m not interested in staying this proceeding and — but rather stating on the record that I find it objectionable that the Court has this practice of putting attorneys on the stand without notice. Every time —

THE COURT: Well, forget it. We’ll have notice. We’ll come back on — I’ll find the date. It will be — I’m not here next week, but we’ll come back later and you’ll have notice.

MR. COLEMAN: Well —

THE COURT: Okay?

MR. COLEMAN: If the Court considers it necessary, then I’ll come.

THE COURT: Well, we have a factual dispute here between lawyers. Now, Normally I take lawyers at their word, but we have words. We’re saying things that are irreconcilable —

MR. COLEMAN: But I don’t —

THE COURT: And I’d like to be able to have a basis to determine which of them is true.

MR. COLEMAN: But are they material, Your Honor?

THE COURT: You’re asking me?

MR. COLEMAN: Yes.

THE COURT: I will ask the questions and you will answer them.   Read the rest of this entry »