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Friday, March 09, 2007

A Beldar war-story about a witness who lied under oath when he had no apparent motive to do so

This is a long, long war-story about a witness who told me a lie despite his lack of any good motive to do so. I don't know if it has any relevance to the Libby trial. If you're willing to wade through the war story, I'll let you draw your own conclusions about that, but I will suggest some that have occurred to me en route.

*******

In the early 1980s, I was defending a regular client, Montgomery Ward & Co., in a personal injury case. The plaintiff, who I'll call Mrs. T___, was an older woman — a very sympathetic grandmother, in fact — who claimed to have suffered a ruptured disc in her neck when she was struck by an elevator door while exiting an elevator at one of Wards' stores. She'd had surgery on her neck, a laminectomy, that had been performed by a Houston neurosurgeon whom I'll call Dr. M___.

As a normal part of preparing for trial, Mrs. T___'s lawyer had arranged to secure Dr. M___'s testimony about his diagnosis, the need for the surgery, its outcome, Mrs. T___'s future prognosis, the reasonableness of her medical expenses, and so forth. As an experienced trial lawyer, my opponent knew that it's hard to arrange for doctors to appear as live witnesses at trial, so he'd had also arranged to record Dr. M___'s deposition through both a normal court reporter's written transcript and on a videotape that could be displayed to the jury.

This was by far the most serious case of the 150 or so on my docket then. I was new to the practice of law, and I had yet to try a first-chair district court case for big bucks, and in fact, I'd never even participated in either a doctor's deposition or a videotape deposition. What's more, my client's nominal co-defendant in the case, the elevator maintenance company, had cut a so-called "Mary Carter" deal with Mrs. T___'s lawyer whereby the elevator maintenance company would get back the modest amount it had already paid Mrs. T___ out of any verdict Mrs. T___'s lawyer could get against Wards! That aligned the elevator maintenance company and its very experienced lawyer squarely with Mrs. T___. It also meant that in this deposition, as at the trial itself, this case was shaping up to be (to use the extremely crude language that trial lawyers often use) a gang-bang, with me and my client as the bang-ees. Mrs. T___'s lawyer was asking for $500,000 to settle the case, and he intended to ask the jury for an even $1 million.

I was appropriately nervous, but I knew one of the things I needed to do before the deposition was to check out the surgeon.

Dr. M___ checked out pretty well. There was no way that I could attack him on the basis of his credentials. Dr. M___ was not only board certified, he was one of the examiners for the neurosurgery national board exams. He had over two decades of experience treating just this kind of case and doing just this kind of surgery. He had staff privileges at all of the best hospitals in the Texas Medical Center. In fact, Dr. M___ was an adjunct professor in neurosurgery at one of Houston's two medical schools. My then-girlfriend, who was a medical student, had even assisted him (i.e., held a retractor for a while) in the operating room in an unrelated case, and she told me that his reputation among the other surgeons and surgical residents was superb.

I also determined that although Dr. M___ had testified a few times before, it had only been in cases in which he had been a treating physician, meaning he couldn't have avoided being a witness. He wasn't a hired gun or a professional testifier by any means. I went through my law firm's library of prior expert witness depositions, but I only found one from Dr. M___, and that was in a case involving epilepsy — nothing remotely related to my case — and in fact his testimony had been generally helpful to my firm's client in that case. (I tucked that earlier deposition into my briefcase anyway, but I saw no way that it was likely to become useful.)

Nor was there any reason for anyone to suspect him of being biased. Mrs. T___'s medical bills, including her bills from Dr. M___, had already been paid in full by her insurance company. Mrs. T___'s lawyer was paying Dr. M___ by the hour for the time he was spending in giving his deposition testimony, but it was at a very reasonable rate, no different from what any local doctor would charge for taking time away from his practice. Other than the natural sympathy that most physicians feel for their patients, this witness had no conceivable motivation to shade his testimony in the plaintiff's favor, much less to tell an outright lie on her behalf.

The medical records also weren't particularly helpful to me. From both the pre-surgical tests and the findings during surgery, there was no doubt that the plaintiff did indeed have a ruptured cervical disc. That didn't necessarily establish that the disc had been ruptured in the elevator door incident, and there are lots of other ways that people can rupture cervical discs — sneezing, stepping hard off a curb, turning over in bed. There were indications of pre-existing arthritic changes in her spine typical for a woman of her age, but there were no suggestions that they had ever been symptomatic. I had no proof of any other traumatic event that could have accounted for the ruptured disc, so the surgeon's testimony was also likely to provide adequate proof of causation between the alleged accident and the ruptured disc.

All of this made me pretty glum as the deposition approached. I sought advice from older lawyers at my firm, but they pretty much came up dry too. The best they could offer were some suggested questions that can be asked in just about any soft tissue/ruptured disc case and that are usually somewhat helpful to the defense. For example: "Now, doctor, can you explain to the jury the difference between objective findings and subjective complaints? We know you have some diagnostic devices like X-rays that give you objective findings, but you don't have a device that exactly measures a subjective complaint like pain, do you? So when your patient tells you her pain is very severe, you generally must take her word for that, correct? And there aren't any objective tests that can tell whether her pain is really moderate or mild instead, are there? And you weren't there when the elevator door supposedly hit her, were you? So you can't absolutely, positively rule out that she might have actually ruptured the disc in her neck in one of those other ways that you've described as possible ways to get this kind of injury, can you?" That sort of stuff.

Thin gruel for an important cross-examination.

*******

I had a heavy, bulging briefcase when I showed up at one of the hospital conference rooms for Dr. M___'s deposition at about 4:30 p.m. on a Tuesday, but that was only because Mrs. T___ had a whole lot of medical records. My handwritten list of questions for Dr. M___ filled about a page and a half, with wide margins and big writing.

And as I'd expected, Mrs. T___'s lawyer did a first-rate job of getting Dr. M___ to explain Mrs. T___'s condition, her surgery, her post-surgical care, the pain attending all of that, the likely causation, the possibility that she might need further surgery, the reasonableness of her expenses — the whole nine yards. And then the elevator maintenance company's lawyer put in his two cents, basically functioning as an additional lawyer for Mrs. T___.

Mind you, Dr. M___ wasn't going out of his way to hurt me and my client. He did have the educator's gift of explaining complicated medical information in easily understood terms, though. And by just giving honest and thorough answers to the particular questions skillfully selected by my opposing counsel, Dr. M___ had just about buried my client on medical causation and damages in this personal injury case. A million dollar verdict was seeming more and more likely to me, based on this testimony. I was very discouraged.

It was about 6:00 p.m. when it was finally my turn, and everyone was pretty tired. Dr. M___ in particular was beginning to look kind of ragged. When I started my questions, he interrupted to ask, "Can you finish up in 15 minutes or less? I've got a headache, my allergies are acting up, and I've been up since 5:00 a.m. today making rounds and doing three different surgeries, and my wife and I are supposed to go to a charity function tonight."

This was not an unreasonable request. Indeed, if I had not already been wallowing in self-pity over my hopeless plight in this deposition, I probably would have felt sorry for Dr. M___. His face was red, and his eyes were bloodshot; he was perspiring freely under the videographer's bright lights; and his voice had gotten hoarse.

I assured him that I'd be as brief as I could, but that it would be more than 15 minutes, and I started going through my list of "standard questions." Being inexperienced, however, I wasn't very crisp, and some of my questions were probably a bit repetitive. Dr. M___ was getting a little bit testy, and his own answers were getting shorter and more curt, less expansive, more technical, and with fewer explanations to make it easy for a lay audience to understand him. I wasn't making much headway.

"Dr. M___," I said, "I'm almost done. Thank you for bearing with me. I'm just doing my job, and all of these questions are important, or at least they seem that way to me. I'm on my last topic, sir, and to start us off on that: Dr. M___, can you tell the jury, please, what the term 'secondary gain' means?"

*******

I must detour here to explain that "secondary gain" is another one of those things that pretty much all personal injury defense lawyers ask doctors about. Wikipedia's definition isn't too bad:

Patients' symptoms often have a significant psychological component, and physicians sometimes categorize psychological motivators into primary and secondary gain. Primary gain is an internal, unconscious motivator. For example, if a patient is particularly guilty about being unable to perform some task, their medical symptoms may be amplified as a psychological defense against the guilt. Primary gain can be a component of any disease, but is most dramatically demonstrated in Conversion Disorder (a psychiatric disorder in which stressors manifest themselves as physical symptoms without organic causes — such as a person who becomes blind after seeing a murder). The "gain" may not be particularly evident to an outside observer.

Secondary gain can also be a component of any disease, but is an external motivator. If a patient's disease allows her to miss work, gains her sympathy, or avoids a jail sentence, these would be examples of secondary gain. These may but need not be recognized by the patient. If she is deliberately exaggerating symptoms for personal gain, then she is malingering. However, secondary gain may simply be an unconscious psychologic component of symptoms.

So what the defense lawyer typically wants from the testifying physician — what I wanted from Dr. M___ — is mostly just an explanation of what "secondary gain" is. We want an acknowledgment that the prospect of getting money through a personal injury lawsuit can sometimes interfere with their patients' recovery or cause them to unintentionally exaggerate or prolong their subjective symptoms and complaints. We want the doctor to agree that he's seen patients who suddenly seemed to get dramatically better — for no objective reason that medical science can explain — as soon as their lawsuits were over. We want to end this topic, probably, with something like, "No doctor can absolutely rule out the possibility that 'secondary gain' might be a factor in a case like Mrs. T___'s, can they?" An honest, non-argumentative doctor will usually go along with you on all this stuff.

Unless I had a particular reason to think I was going to get an affirmative response, I would not have asked Dr. M___ to take the next step — that is, to render an opinion that secondary gain probably was responsible for some or all of Mrs. T___'s continued reports of pain and her slow recovery from surgery. Instead, I'd much rather get him committed, if I can, to the notion that no one can really say for sure.  If I leave room for him or anyone else to take a guess, then the plaintiff's lawyer is likely to get the doctor to say on re-direct that no, his opinion is that Mrs. T___'s medical situation hasn't been affected by "secondary gain" considerations relating to this lawsuit, and in fact, he wouldn't have prescribed all those post-surgical procedures and pain meds for Mrs. T___ if he really thought she was a malingerer, and now get the hell out of my hospital, you snot-nosed young lawyer!

Anyway, back to the war story:

*******

"Dr. M___," I ask, "can you tell the jury, please, what the term 'secondary gain' means?"

Dr. M___ lets out a long breath and leans forward, his elbow on the table and his forehead cradled in his palm. He scrapes his hand down over a substantial seven-o'clock beard stubble, staring up over his fingers at me. He sniffs and furrows his brow; his eyes dart from me to Mrs. T____'s lawyer for a moment, and perhaps then he also glances over my shoulder at the wall clock. I can see that he is engaged in some internal debate, albeit a very quick one. For those few seconds, the only sound in the room is the soft whirrrrr of the video camera, but maybe I think that I hear something else too.

He lets his hand fall to the table and he shakes his head. "Never heard of it," says Dr. M___.

I am pole-axed. I ask in disbelief and confusion, "You've never heard of the term 'secondary gain,' Doctor?"

"I just said I'd never heard of that term before, counselor. So move on please." He stares at me. Defiant. It might be fair to call this stare a glare.

"But surely," I sputter, "you've at least heard that term used in medical-legal situations, in testimony about your patients? Maybe you've heard a lawyer use the term in a question, even if it wasn't a term you'd normally use yourself?"

"I said I've never heard of the term before, and I certainly have never used a term I've never heard before. Now, are we all done here, counselor?" Dr. M___ stands up and starts to unclip the microphone from the breast pocket of his scrubs, but he pauses to look at me, probably because I have begun to dig furiously through my oversized briefcase.

"No, sir, we're not!" I shoot back at him (with a voice far more confident than I actually feel). I locate what I've been looking for, and I pull a thin booklet from my briefcase. Dr. M___ sits down, still glaring at me with no less annoyance, but perhaps with a certain uncertainty now. I flip through the pages.

"Dr. M___," I begin again, "do you remember having a patient a few years ago named Lorraine C___? To refresh your recollection, I'll suggest to you that while Ms. C___ was under your care, she also had a personal injury lawsuit pending against Ford Motor Company."

Two more beats of silence; Dr. M___ rubs his chin. "Well, yes. But Lorraine C___ was an epilepsy patient, and epilepsy has nothing to do with Mrs. T___'s ruptured cervical —"

"I didn't say it did, Dr. M___," I interrupt, "and you've now answered that question, thank you, but I still have a few more, so if you'll please just continue to keep your seat? Thank you, sir. And do you recall, sir, that on September 12, 1979, in Ms. Lorraine C___'s lawsuit against Ford Motor Company, Cause No. 78-19325 in the 129th District Court of Harris County, Texas, you gave your oral deposition in another conference room here at this very hospital where we're sitting today?"

"Now, wait just a minute, counselor, that was —"

"Yes or no, Dr. M___," I insist, "did you give your deposition in that case, or not?"

"Well, yeah, I did, but —"

"Thank you, sir," I interrupt again, "and do you remember taking the same oath for that deposition that you took here today?"

"Of course!" he answers, "But I don't see what —"

"I only have the one copy, Doctor," I interrupt again, getting to my feet and stepping around the videographer's lights to his side of the table. "So I'll have to stand over your shoulder as we read it together. The question, at page 43, line 8, was 'What kinds of things can account for continuing complaints of pain by Ms. C___ that can't be verified through your objective tests?' Did I read that correctly, Doctor?"

Dr. M___ looks up over his shoulder at me. No doubt at all: this is now officially a glare. "But this ...." He jabs the transcript I am holding in front of him. "You have to understand that ...." He coughs, wipes his face with a tissue, and then starts again. "You see, counselor, epilepsy is not ...."

He trails off, but I am done interrupting for the moment. Dr. M___ may look to everyone else in the room like he's just lost in thought. But by now, even though there's sweat on my own brow too, I am reasonably confident that I have already taken the rope which Dr. M___ handed to me, and that I've placed it in a noose firmly around his neck. He has been silently reading ahead in the transcript, and now his silence tells me that he knows what I know, which is that the trapdoor lever has already been pulled. Dr. M___ is on his way down, and as far as I am concerned, he can kick and twitch all he wants to along the way.

Eventually, grudgingly: "Yes, you read that correctly, Mr. Dyer." (Hey! He does remember my name after all!)

Me again: "And now will you please read aloud, Dr. M___, starting at page 43, line 10, through page 45, line 4, from your sworn testimony from that case? Read to this jury, please, the very thorough definition that you volunteered, Dr. M___, unprompted by any lawyer or anyone else. Right there, Dr. M___, read aloud your entire answer, please."

He's not answering yet, but that's okay, because now I want to fill the silence as he's accelerating downward: "It's the long answer," I continue, "the one that begins with the sentence, quote, 'Well, one explanation could be "secondary gain," and let me fully explain just what we physicians mean when we speak of "secondary gain,"' unquote. Read that aloud, please, and then the rest."

The good doctor, however, gives me a last spasm of drama — something better than reading aloud, something even better than I could have hoped for — before he quite hits the end of the rope.

"Well, counselor," Dr. M___ snarls at me, with his spray of spittle sparkling under the videographer's bright lights as he points to my still-open briefcase on the far side of the table, "I didn't know that you were going to bring the god-damned archives of the world!"

*******

I made him read aloud the whole segment from his prior deposition, but only once. Dr. M___ had given almost a textbook definition then — very eloquent, actually very close to the Wikipedia definition above, but probably more clear.

I had the court reporter mark the cover pages and relevant testimonial pages from Dr. M___'s deposition in the C___ vs. Ford case as an exhibit to Dr. ___'s deposition in the T___ vs. Wards case. And then I had the good sense to say: "Okay. I have no further questions for this doctor." And to shut up, and to close my briefcase.

Mrs. T___'s lawyer tried to smooth things over on redirect with a few innocuous questions about other topics, but it just wasn't working. He could barely get Dr. M___ to stop glaring at me long enough to pay attention to any more questions. The elevator maintenance company's lawyer — who, despite the Mary Carter agreement, was more often than not on the defense side of the personal injury bar, with a defense's lawyer's normal sympathies and sense of humor — just grinned and asked nothing at all when it was his chance to re-direct.

As it happened, I tried that case twice, to two different juries. I mostly won it the first time; Mrs. T___'s lawyer appealed successfully; and so we tried it all over again. Both juries saw the videotape of Dr. M___'s deposition. But in neither case did I ever make any argument to the jury about Dr. M___ or his credibility. I had no basis in fact to suggest that he was a phony or a fraud or a whore or a habitual liar or a bad doctor. He was none of those things, and under the broad reading that I personally choose to give to the canons of legal ethics, it would have been improper for me to suggest any of those things to either jury.

But I didn't need to. Both juries, after viewing that videotape, were shocked to their toes by that exchange. That a man of science, a professor, a pillar of the medical community, would deliberately lie — and then not only curse but, as several jurors pointed out to me later, take the Lord's name in vain immediately after lying under oath (indeed, an oath followed by a prayer, "so help me God!") — absolutely and completely destroyed the credibility of Mrs. T___'s entire damages case. That Dr. M___ was willing to lie about "secondary gain" must mean, they inferred, that "secondary gain" was the explanation for all of Mrs. T___'s complaints! Indeed, both juries spontaneously concluded that Mrs. T___ and Dr. M___ had conspired to exaggerate her symptoms; many jurors doubted that she had ever needed the surgery at all. Based almost entirely on their rejection of Dr. M___'s testimony, both juries quantified her total damages in a shockingly small amount (for that day and time and venue) that was barely in excess of her concededly reasonable medical bills — and amazingly, the two different juries' findings were within $500 of each other!

(As it turned out, however, both jury's damages findings were mooted because we also established that Wards hadn't committed any negligence in connection with the elevator door incident. Mrs. T___ and her lawyer got nothing anyway, except for the comparatively small sum that the elevator maintenance company had paid them as part of the "Mary Carter" deal.)

*******

Dr. M___ deliberately lied. He didn't forget. He didn't misspeak. He just outright lied under oath. And it just so happened that, through a freakish coincidence, I had there in my briefcase (a/k/a the "archives of the world") the evidence to prove beyond any doubt that he had just lied.

He lied about something that really was only marginally related to the case — his own familiarity with a completely subjective and general conceptual term that might or might not arguably apply to just about any patient. He wasn't even lying about the application of that concept to this specific case; indeed, no professional can ever give more than an educated guess whether "secondary gain" is involved with a specific patient's treatment and recovery. That's why I never considered bringing Dr. M___'s lie to a prosecutor's attention: His lie was on a subject of fact, not opinion ("had he heard or used the term"), and there was certainly adequate proof beyond a reasonable doubt that he had indeed intentionally lied under oath, but his lie just wasn't on a sufficiently material point. If he'd said, "I operated twice" when he really operated only once, that would have been a material lie. That would have been perjury.

And Dr. M___ had absolutely no good motive to lie. He wasn't trying to help Mrs. T___, or to hurt Montgomery Ward & Co. If that had been his intention, he could have said, "Yes, counselor, I know that term, and here's what it means, but let me give you my professional opinions as to why it doesn't apply." And he could have accomplished his purpose without telling any demonstrable lies. As far as the goals of either side in the lawsuit, Dr. M___'s lie was an absolutely senseless one.

But I'll tell you, friends and neighbors, what I'm absolutely convinced of, based partly on the circumstances, but mostly on his bleary-eyed stare and the gears in Dr. M___'s mind which I imagined that I heard turning over the whirrrr of the video camera, just before he started the lie.

Dr. M___ just wanted to go home. He wanted to shave five minutes off the deposition. He was annoyed at this eager-beaver young lawyer, and he didn't much care one way or another about this lawsuit, and his nose was stuffy, and his feet were throbbing, and there were more surgeries scheduled for dawn tomorrow. His wife was probably going to nag at him for forgetting to bring home that carton of milk, and the chicken at the charity dinner was probably going to be cold and rubbery. He lied because he thought it would save him some time because it would shut me up, and because he thought he deserved to get the deposition over with, and because he knew he was a terrific doctor and nobody was suing him and he certainly hadn't done anything wrong anyway, and because he had already told the truth about everything really important, and because he thought this little lie would just make things simpler, and because he thought he wouldn't get caught, and because he thought the lie just would not matter.

Well, yeah, but the lie did matter. Testimony under oath matters; lies matter. This particular lie wasn't perjury, but it still turned out to have a dramatic effect on both juries' damages verdict. You just never know when the clueless-looking young lawyer might actually have a clue, or when he might, by coincidence, have the archives of the world, or at least the pages from those archives that turn out to matter most, right there in his overstuffed briefcase.

*******

I don't know if there may be any parallels in the Libby case. As I've written before, I still have a hard time imagining what Libby's motive could have been for the deliberate lies that the jury found him to have made. They just don't seem to be very smart lies, nor were they lies that could have accomplished very much even had they gone uncaught. And Libby himself is such a smart guy.

But then, Dr. M___ is a smart guy, and his lie wasn't very smart, nor very profound either. He lied for bad reasons that seemed reasonable to him at the moment he told the lie, but I certainly made him regret the lie, and I probably made him question his own reasons for telling it, pretty soon thereafter.

I have to allow for the possibility that Scooter Libby originally told his lies for not-very-good, not-very-smart reasons too, even if they were reasons that seemed valid to him at the moment he told them. But then he got caught in the lies, and then he just didn't have any very good answers for why he'd told them.

That would certainly explain why he didn't take the stand.

Maybe Scooter Libby didn't take the stand in his own defense because he's a good man who, by the time of the trial, recognized that he'd made some very bad decisions for not-very-good reasons. Maybe Scooter Libby is a man who was willing to let his lawyers do their best, and who was willing to put the prosecution to the test of meeting its burden of proof, and who was hoping the jury might find a "reasonable doubt" even without hearing any testimony from him — but because he is indeed a good man, and a man who has spent now hundreds of hours searching his conscience, he just couldn't bring himself to tell any more lies under oath, even if they might have improved his chances of acquittal.

That's frankly the best explanation for his not taking the stand that I can think of under these circumstances, and it's not entirely unflattering to him. That's about the only way I can make sense of all this, and I guess I hope it's true.

Posted by Beldar at 12:04 AM in Law (2007), Trial Lawyer War Stories | Permalink

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Comments

(1) nk made the following comment | Mar 9, 2007 7:21:46 AM | Permalink

Great story, Beldar. Nice, the way you de-emphasized your own energy and conscientiousness but those are the qualities that make a good lawyer.

(2) Fred Z made the following comment | Mar 9, 2007 11:33:13 AM | Permalink

Am I right that you think lying under oath on a non-material point is not perjury?

If so, how is Libby guilty of perjury? We now know there was no crime. We now know Fitzgerald knew there was no crime. If Libby lied, he lied about something not material to any crime.

(3) DRJ made the following comment | Mar 9, 2007 2:42:46 PM | Permalink

This was an excellent war story and an even better post. Timely, topical, riveting. You really should submit something to Texas Monthly. TM could use a token conservative.

(4) Beldar made the following comment | Mar 9, 2007 3:35:45 PM | Permalink

Fred Z, "materiality" is an element of the federal perjury statute under which Libby was charged, 18 U.S.C. § 1623, which criminalizes "false material declarations" made under oath. "Material" doesn't have to relate to a crime. Obviously there are scads and scads of sworn declarations made subject to penalties of perjury — including all the important questions I've asked every witness in civil trials and depositions for the last 26 years — where no possible or arguable crime has been alleged, much less proved. What's "material" may relate to a crime, but it need not.

For example, the Libby indictment specifically alleges, in the five subparts of paragraph 29 (at page 10), five different matters that the government claimed to be "material" to Libby's grand jury testimony: when and how he learned Plame worked for the CIA; whether and when he disclosed that to members of the media; the language he used; his knowledge as to whether any of the information was classified; and whether he was candid with the FBI agents in describing his conversations with other government officials and the media. Those were indeed all subjects within the overall scope of what Fitzgerald had been given authority to investigate, even if none of them, by themselves, might ever turn out to prove a crime on anyone's part. They were all subjects on which the government was entitled to Libby's truthful testimony before the grand jury, and they weren't collateral or tangential to the grand jury's overall purpose.

I haven't found a copy of the court's instructions to the jury online yet, but I'm confident that it included "materiality" as one of the elements that had to be proved beyond a reasonable doubt by the government, along with instructions explaining that.

If Libby had been asked in his grand jury testimony, "What color is your wife's hair?" and his answer was "brown," and in fact his wife had red hair, and Libby knew that and was intentionally lying about it (because, for example, his wife was embarrassed about having red hair, or for whatever other reason), then he would have made a false declaration under oath. He would not have committed perjury, though, because his wife's hair color wasn't material to the subject of the grand jury proceedings.

Likewise, Dr. M___'s having heard or used the term "secondary gain" was not material — central, crucial, bound up in the main subjects at issue in an important way — to his diagnosis and treatment of Mrs. T___'s injuries. At least that was (and is) my judgment, and I think most prosecutors, in calculating what they could likely prove beyond a reasonable doubt to a jury, would immediately have agreed, and therefore would not have sought the indictment of Dr. M___ for his false declaration under oath.

(5) antimedia made the following comment | Mar 9, 2007 3:51:50 PM | Permalink

"And it just so happened that, through a freakish coincidence, I had there in my briefcase (a/k/a the "archives of the world") the evidence to prove beyond any doubt that he had just lied"

Would to God we had some "lucky" people in government who, through similar "freakish coincidence", let our nation with the same wisdom with which you conducted that cross examination.

You are far too modest, my friend.

(6) Beldar made the following comment | Mar 9, 2007 5:29:33 PM | Permalink

I plead not guilty to the charge of modesty. It was a freakish coincidence because I had absolutely no expectation, nor reason to even guess, that Dr. M___ would tell that particular lie, and it was pure luck that he had so eloquently defined the term in the single prior deposition of his that I had been able to locate. And had my firm not also represented Ford Motor Co., for instance, I would almost certainly have never found that deposition to tuck into my briefcase. I made good use of the coincidence once it occurred, but its occurrence was due to luck, not extraordinary skill or preparation.

(7) Michael Llaneza made the following comment | Mar 9, 2007 10:38:03 PM | Permalink

Some say fortune favors the bold, the survivors say fortune favors the *prepared*.

It wasn't luck, it was professionalism: doing it right every time.

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