False Testimony May Be Useful for More Than Just Cross-Examination
Defending personal injury claims against corporate defendants is often an uphill battle when confronted with the fact that there is widespread bias on the part of jurors against corporations. Unfortunately, defense attorneys are often perceived as bullies who seek only to "beat up" the unsuspecting plaintiff in an effort to catch him or her in some simple misspoken or ill thought-out testimony. In reality, it is not uncommon that a plaintiff will falsely testify that he or she has never been treated for a similar injury, has never been involved in any other accidents, or even has no criminal history. With thorough discovery, the evidence often shows otherwise. The question then remains, how can you use a plaintiff's false testimony to your best advantage? Every attorney knows that once a plaintiff provides false testimony, it is useful fodder for cross examination at trial. However, in Florida, false testimony can also lead to dismissal of the plaintiff's entire case.
Florida courts afford judges the inherent authority to sanction a plaintiff by entering an involuntary dismissal of their entire case when it is determined in an evidentiary hearing that the plaintiff has perpetrated a fraud on the court. The rationale is that any plaintiff who attempts to defraud the court has forfeited his or her right to be there.
Standard for Involuntary Dismissal
The court's power to impose an involuntary dismissal exists because no litigant has the right to trifle with the courts. Morgan v. Campbell, 816 So.2d 251, 252 (Fla. 2nd DCA 2002). Fraud upon the court occurs when it can be shown by clear and convincing evidence that a party has knowingly set in motion some unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter by improperly influencing the trier of fact, or unfairly hampering the presentation of the opposing party's claim or defense. Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998), citing, Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). The right to dismiss an action is also an obligation of the court to deter fraudulent claims from proceeding in court. Savino v. Fla. Drive In Theatre, 697 So.2d 1011, 1012 (Fla. 4th DCA 1997).
In Florida, "honesty is not a luxury to be invoked at the convenience of a litigant, but rather, complete candor must be demanded in order to preserve the ability of this court to effectively administer justice." Baker v. Myers Tractor Services, Inc., 765 So.2d 149, 150 (Fla. 1st DCA 2000). While it is clear every litigant has the right to proceed forward, it is equally clear that such a right can be forfeited. Id.
The integrity of the civil litigation process depends on 'truthful disclosure" of facts. Cox v. Burke, 706 So.2d 43, 47 (Fla. 5th DCA 1998). A plaintiff's disclosure of only some of the facts is not "truthful disclosure." Metro. Dade Co. v. Martinsen, 736 So.2d 794 (Fla. 3rd DCA 1999). If a litigant is dishonest during the discovery process it severely prejudices an adversary who then proceeds with the belief that the facts presented under oath are true and correct. For this reason, courts in Florida have vigilantly required honesty and full and fair disclosure from plaintiffs throughout the litigation process. See, eg., Baker v. Myers Tractor Services, Inc., 765 So.2d 149 (Fla. 1st DCA 2000); Simmons v. Henderson, 745 So. 2d 1031 (Fla. 2nd DCA 1999). It is particularly true that a plaintiff?s concealment of facts is a perpetration of a fraud upon the court when the false testimony concerns a central issue necessary to establish a claim, rather than a collateral matter. Baker; at 150.
In Baker, the Plaintiff claimed he had injured his right knee in an accident and denied having any prior knee injuries. Through discovery, opposing counsel obtained Mr. Baker?s employment records which revealed he had actually sustained a prior injury to his right knee while on the job, and also while playing high school football. The Court of Appeal affirmed the trial court's dismissal of the action and reiterated the trial court's conclusion that:
"Given the serious nature of Baker's misconduct this Court not only has the right, but the obligation to involuntarily conclude these proceedings."
Similarly, in Morgan v. Campbell, the plaintiff testified at her deposition that she never received any treatment to her neck and back prior to the motor vehicle accident at issue. Despite her unequivocal testimony, it was later established she actually had undergone multiple treatments for the same condition prior to the accident. At the conclusion of the hearing on the defendant's motion for dismissal, the trial court found:
These are not what I would refer to as oversights or simply failed memory, if you will. But, it seems to be a whole line of answers that are designed to deceive and outright cover up what the records actually show. I mean some of these questions are, you know, pointblank . . . I don't know how more clear it can be . . . the testimony in this case appears to me to be blatantly false.
Morgan at 253.
Ethical Implications for Presenting False Testimony
A litigant's false testimony may also present ethical ramifications for the attorney who represents the person offering the false testimony. Under Rule 4-3.3(a)(4), Florida Rules of Professional Conduct, a lawyer shall not knowingly permit any witness, including a criminal defendant, to offer testimony or other evidence that the attorney knows to be false. As such, it may be prudent for defense counsel to inform plaintiff's counsel of the factual basis regarding the plaintiff's false testimony before seeking an involuntary dismissal.
When faced with a plaintiff who has been less than candid about the facts relating to a material issue in your case, consider whether you believe the plaintiff has knowingly offered false testimony that rises to the level of fraud on the court. If so, filing a motion for involuntary dismissal may be the best use of the false testimony. Simply filing the motion may encourage an early settlement that is favorable to your client. If not, the plaintiff risks the ultimate sanction of having his case dismissed for perpetrating a fraud on the court.