You should confront it with whatever information you have that proves their testimony false. Whether or not you confront it in deposition or at trial as an impeachment is a strategic decision.
The question was what to do when a CLIENT gives deposition testimony that you know to be false. You obviously would not want to impeach your own witness/client.
The question was what to do when a CLIENT gives deposition testimony that you know to be false. You obviously would not want to impeach your own witness/client.
If I remember correctly from studying for and taking the MPRE, if your client lies on the stand you have to seek to convince your client to rectify the false statement. If he/she doesn’t, you have to seek to withdraw as counsel. If your withdrawal is denied, you have to disclose the falsity to the court. If it’s a criminal case, I think it differs slightly and you have to encourage your client to change but if he/she won’t you just can’t encourage the lie. This applies to testimony at court and I assume would be the same for a deposition.
You certainly wouldn't want to impeach your own client, as John and Peri have suggested. If I knew my client was lying during a deposition, I would ask for a quick break (or wait until a break) and advise my client to tell the truth and remind them of the consequences of lying under oath. If my client refused to follow my advice, I would then have to consider withdrawing as counsel. Rule 3.3 of the Utah Rules of Professional Conduct provides some guidance on this issue. Rule 3.3, in part, states that "a lawyer shall not knowingly...offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false." Additionally, Rule 3.4 states that "a lawyer shall not...falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law."
If my client lied in a depo, I would call for a break and take him aside to remind them that they are under oath and committing perjury, impressing upon them that the penalties for doing so are worse than the cost of telling the truth. If they insist on lying, I would also explain that I would have to stop representing them.
You should confront it with whatever information you have that proves their testimony false. Whether or not you confront it in deposition or at trial as an impeachment is a strategic decision.
ReplyDeleteThe question was what to do when a CLIENT gives deposition testimony that you know to be false. You obviously would not want to impeach your own witness/client.
DeleteYou should use that information to impeach them. Whether that be by getting them to admit it is false in the deposition or later on at trial.
ReplyDeleteThe question was what to do when a CLIENT gives deposition testimony that you know to be false. You obviously would not want to impeach your own witness/client.
DeleteIf I remember correctly from studying for and taking the MPRE, if your client lies on the stand you have to seek to convince your client to rectify the false statement. If he/she doesn’t, you have to seek to withdraw as counsel. If your withdrawal is denied, you have to disclose the falsity to the court. If it’s a criminal case, I think it differs slightly and you have to encourage your client to change but if he/she won’t you just can’t encourage the lie. This applies to testimony at court and I assume would be the same for a deposition.
ReplyDeleteDoes your proposed course of action apply to all false testimony?
DeleteYou certainly wouldn't want to impeach your own client, as John and Peri have suggested.
ReplyDeleteIf I knew my client was lying during a deposition, I would ask for a quick break (or wait until a break) and advise my client to tell the truth and remind them of the consequences of lying under oath. If my client refused to follow my advice, I would then have to consider withdrawing as counsel.
Rule 3.3 of the Utah Rules of Professional Conduct provides some guidance on this issue. Rule 3.3, in part, states that "a lawyer shall not knowingly...offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false."
Additionally, Rule 3.4 states that "a lawyer shall not...falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law."
URPC Rules 3.3 and 3.4 are potentially relevant. Do they only require you to "consider" withdrawing as counsel?
DeleteIf my client lied in a depo, I would call for a break and take him aside to remind them that they are under oath and committing perjury, impressing upon them that the penalties for doing so are worse than the cost of telling the truth. If they insist on lying, I would also explain that I would have to stop representing them.
ReplyDeleteWhat are the potential "penalties" for giving false testimony? And, how would you "stop representing them"?
Delete