I had lunch last week with a friend at The Lazy Daisy cafe. He’d been through the wringer over a child custody case and shared with me his experiences with the meat grinder of family court in the years before he knew me.
The biggest frustration he had, as so many people do in court, is the lying. In theory, no one is lying, because testimony is taken under oath. In reality, every case is riddled with lies, half truths, shades of fact and the greatest of all, the omission of a critical fact that totally changes the situation.
In the court’s eyes, as a lawyer I’m supposed to be the champion for my client, and I’m expected to have vetted their testimony to make sure that it’s true. Most of the time I’ve spent a great deal of effort to explain to the client that judges hate liars and I coach them to be as truthful as possible.
Inevitably when I get in to a child custody hearing or a divorce trial, it gets heated and the cries of “She lied!” “She’s committing perjury!!” “That’s a lie!” start.
In every courtroom, those phrases are said, every day. And frequently it’s true. Some days it’s her, and some days it’s him, but no matter what, someone, somewhere is shading, spinning, omitting or outright lying.
I know it. You know it. The judge knows it.
The angry and frustrated clients always say “Put her in jail!” That’s not going to happen so much. Judges can’t put away everyone who lied in court, there’d be no room for the real criminals.
In one of my first trials, I was a very green lawyer and had a full jury, and a soon to be retiring judge. I had some client control issues, as every lawyer does at some point, but this one was off the charts. Arrogant, sure of himself and the rightness of his cause were all the ingredients for a disaster. But I didn’t see it.
I put him on the stand after significant preparation, and he proceeds to ignore everything I said, and lie through his teeth. The judge is looking at me with this, “Counsel, get him off the stand, NOW!” look. So I did and of course the client tried to fire me and but for the judge telling him it was a bad idea, I’d have been off the case.
So, what’s the point ? Well, it’s about credibility. Once a judge knows, or even suspects, that someone’s lying to the court, their credibility goes out the window.
I had a case earlier this year, where the ex-wife said she was married in a Michigan court, and then said she was single in a California court. The judge looked at the other lawyer and said, “So either she lied in Michigan, or she lied in California, either way, she’s a liar!”
It was a bad day for that lawyer, because now they’re fighting up stream with a judge whose experience with the client is that she’s not to be trusted. In family court, when the judges are making decisions on issues like who should be the primary custodial parent, that sort of taint can kill your case.
Which is why I always advise my clients that lying is a very bad thing. No they’re not going to go jail, but they’ll never have the same credibility again.
The question then becomes how to prove your case, if you know you’re dealing with a liar. Fighting a lie, is like shadow boxing, for so often it comes down to: he said, she said. Generally the best way to get rid of the shadow is to turn on all the lights and face them to your accuser and make them fight a battle that they don’t want.
If my client is accused of being a pot smoker, we provide the prescription, then we attack with bad parenting and lack of time to devote to the child. That’s how we fight a war, in which there are no winners.
David Pisarra is a family law attorney focusing on father’s rights and men’s Issues in the Santa Monica firm of Pisarra & Grist. He can be reached at firstname.lastname@example.org or (310) 664-9969.