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Divorce Utah

Tag: perjury

What if your client gets custody when they should not have, due to you?

What should you do if you represented a client in a divorce who should not have gotten the kids, but got them due to your ability? 

We have a word for those who do such things, who compromise their principles, who devote their talent and effort to an unworthy purpose for personal gain. 

Prostitute. 

Many lawyers (more than you likely comfortably believe) come up with all kinds of ways to rationalize and justify it (“everyone deserves a zealous advocate/defense,” “it’s not my place to judge,” “I was just doing what I was trained and paid to do,” etc.), but it’s all prostitution, pure and simple. 

I went through a phase when I sincerely confused being clever with being a “skilled” attorney. There’s a great line from the movie adaptation of John Grisham’s “The Rainmaker”: 

Every lawyer, at least once in every case, feels himself crossing a line that he doesn’t really mean to cross… it just happens… And if you cross it enough times it disappears forever. And then you’re nothin’ but another lawyer joke. Just another shark in the dirty water. 

Fortunately, I quickly realized the error of my ways and just as quickly corrected them as well. I’m not perfect, but I aspire as best I can to do what is right and let the consequence follow. What Hugh Nibley had to say about God’s law applies equally to earthly law: 

The legal aspects of are not what counts — the business of lawyers is to get around the law, but you must have it written in your hearts (Jeremiah 31:33), to keep it “with all thine heart, and with all thy soul,” because you really love the Lord and his law, which begins and ends with the love of God and each other (Deuteronomy 6:5). It must be a natural thing with you, taken for granted, your way of life as you think and talk about it all the time, so that your children grow up breathing it as naturally as air (Deuteronomy 6:7-9). 

I have believed/believed in a client and won cases for clients who I have later learned was in the wrong, who was lying, who shouldn’t have won. I was just as duped as the court in cases like those. I don’t feel guilty or ashamed (I can’t), but I do feel used and demoralized. 

“I’m not upset that you lied to me, I’m upset that from now on I can’t believe you.” –  Friedrich Nietzsche 

“One lie is enough to question all truth.” – Unknown 

Ethical rules prohibit a lawyer from prostituting himself/herself. To cite the two most relevant: 

Rule 3.1: Meritorious Claims & Contentions 

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 

Rule 3.3: Candor Toward the Tribunal 

(a) A lawyer shall not knowingly: 

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 

(3) 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. 

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. 

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-should-you-do-if-you-represented-a-client-in-a-divorce-who-should-not-have-gotten-the-kids-but-got-them-due-to-your-ability/answer/Eric-Johnson-311?prompt_topic_bio=1  

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What is the percentage of people who commit/are prosecuted for perjury?

What percentage of people lie while under oath in a courtroom, and how often does someone get prosecuted for perjury? 

Re: What percentage of people lie under oath in a courtroom: 

  • If anyone knows this, I don’t know who he/she/they is/are.  
  • If such statistics could accurately be obtained, I don’t know how they could be.  
  • As with so many things, what constitutes “a lie” is not as cut and dried as it may seem, even to intellectual people. 
  • If accurate statistics do exist, I’m sure most in the legal system don’t want anyone to know about them because I’d bet that if such statistics exist they are not flattering to the legal system.
    • I’m not sure how much we can blame the courts for “failing” to catch lies, however, given that no one is infallible and nobody is capable of detecting lies more than roughly 50% of the time* 

Re: How often someone who committed perjury is prosecuted for perjury: 

  • very rarely 

*Sender Demeanor: Individual Differences in Sender Believability Have a Powerful Impact on Deception Detection Judgments 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/What-percentage-of-people-lie-while-under-oath-in-a-courtroom-and-how-often-does-someone-get-prosecuted-for-perjury/answer/Eric-Johnson-311  

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In court cases, how does taking an oath make any difference?

In court cases, how does taking an oath make any difference?

From what I can tell, yes, it appears that taking an oath or affirming to tell the truth before being questioned as a witness in a legal proceeding (whether in court or whether the testimony is being given in relation to the court proceedings) does make a difference because lying under oath or affirmation is an element of the crime of perjury. No oath or affirmation, no perjury.

Lying without being under oath or affirmation can still be a crime or otherwise punished by law in other settings other than a court proceeding (for example, lying a law enforcement officer), so bear that in mind.

Clearly, the purpose of questioning a witness in a court proceeding is to gather factual and/or honest (truthful) information to help the court decide the case. Some information is factual, meaning it is not in dispute, it can be independently verified as true. Other information is “honest,” meaning that it may not be true but the witness believes what he or she is saying is true and is doing his/her best to testify as to what he/she remembers.

If one can be convicted of lying in court or in relation to court proceedings without having sworn an oath or affirmed to tell the truth I do not know of such a law (but that’s not to say such a law does not exist). Why one cannot be convicted of lying in court without having sworn an oath or affirmed to tell the truth I do not know.

I see no good reason why a law could simply be passed that any witness is guilty of perjury if the witness, when, after first being notified that the witness is questioned in the course of or in relation to the court proceedings, the witness makes a false statement of a material fact; and knowledge of the falsity made in a proceeding, or in relation to a matter, within the jurisdiction of the tribunal or officer before whom the proceeding was held or by whom the matter was considered.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/In-court-cases-how-does-taking-an-oath-make-any-difference/answer/Eric-Johnson-311?prompt_topic_bio=1

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Can the courts force you to testify against someone?

Can the courts force you to testify against someone?

In a manner of speaking, yes. You do not have the the option of being a witness if you are ordered by the court to to testify.

The way you are ordered by the court to testify is by a subpoena.

If, in response to the subpoena, you attempt to refuse to come to court and/or testify, the court can hold you in contempt of court, which means it can take certain actions to make you suffer until you agree to testify.

That means that the court can fine you for refusing to testify in compliance with the subpoena.

It also means that if you refuse to come to court the judge can not only fine you, but it can issue a bench warrant to have the police go out and find and arrest you and put you in jail until you testify.

If you lie under oath as a means of avoiding testifying truthfully, that’s perjury, and if you are caught lying under oath you can be charged with a felony, which, if you were convicted, could or would result in fines and incarceration.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Excluding-plea-agreements-can-the-courts-force-you-to-testify-against-someone/answer/Eric-Johnson-311?prompt_topic_bio=1

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What happens if you get caught lying in family court?

I’ve been a divorce and family law attorney for 23 years and gone back and forth over the years on my opinion of how the courts feel about and how they treat lying.

  1. At this point in my career, I think the most accurate way to answer your question is this way: judges have to go out of their way in hearings and trials to wear a poker face. It is their job to be and appear impartial in the course of the proceedings. People who are not aware of this often perceive the judge’s impartiality and the outward manifestation of such to be apathy and indifference. This is something that even I, an attorney, would perceive, so I don’t blame you if you had similar feelings. But keep this in mind when you’re in court, so you don’t mistake the judge’s professional detachment and impartiality for inattention or being duped.
  2. I’m a little ashamed for believing in the past that judges care so little about the divorce and other domestic relations cases that come before them. But just a little ashamed because:
    • While some judges care more than I gave them credit for, the fact remains that judges generally hate divorce and domestic relations cases. Divorce cases are often extremely acrimonious and are often characterized by emotional outbursts and, frankly, a lot of irrelevant information. It is not surprising that judges become jaded quickly with divorce and domestic relations cases and, as a consequence, often tune out much of what is said and presented to them. I once spoke to a retired judge on this very subject. When I asked him, “How much went in one ear and out the other in divorce cases?,” I was shocked but grateful for his candid response: “Oh,” he said, “about 50%.”
    • So one of the best ways you can bolster your credibility with the judge is to dispense with the melodrama, be very businesslike in your presentation of your arguments, stick to the facts you can verifiably prove or for which you can make very persuasive compelling arguments. Do not go into court believing that the judge need only hear your sincere voice to be persuaded that every word that falls from your lips is true and that every word from your spouse ( including “and” and “the”[1]) is a lie.
  1. Even when the judge catches your spouse in a lie, your judge will weigh the seriousness of the lie in determining how the judge will react to the lie. Perjury is both contempt of court and a criminal act, so the judge in your divorce case can sanction and jail you for perjury, and you can also be criminally prosecuted for perjury, if you committed perjury.
    • Not every lie told to a judge or in court is perjury, by the way. Perjury is defined as “The act or an instance of a person’s deliberately making material false or misleading statements while under oath.” (Black’s Law Dictionary (7th ed. 1999). St. Paul MN: West Group. p. 1160).
    • If, for example, your spouse is late in arriving the court and lies by claiming that he or she had a flat tire, the court will probably not lock your spouse up for contempt of court. The judge may (and likely will), however, take note of the fact that your spouse was willing to lie over such a small matter. And many judges will conclude that if you are willing to lie about small things, you may be willing to lie about big things. Don’t lie. It’s wrong. Even if you believe you can get away with lying, it’s wrong. If being morally upstanding is not reason enough for you to tell the truth, remember that once your credibility is called into question or destroyed, it will often not matter whether you tell the truth thereafter. See The Boy Who Cried Wolf. If the court believes you’re a liar, then it may believe that every thing you say is a lie or at least cannot be trusted to be true.

[1] Hat tip to Dorothy Parker

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-happens-if-you-get-caught-lying-in-family-court/answer/Eric-Johnson-311

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