1

I would like to focus on cases which involve a complainant having suffered as a result of medical malpractice or neglect of their need for medical care exercised by their caregivers, such as parents. If the complainant can present medical records or similar evidence of malpractice or neglect taking place in the past, the defendants have to choose between being held accountable for their conduct and the following options:

a) destroying the evidence the complainant can present; b) attempting to prove that the documents pesented by the complainant were forged; c) forging documents which will make the complainant's evidence appear unconvincing or incomplete as a source of information about the events in question.

This is not necessarily a complete list. I suppose, several measures were designed for making these options less accessible or less appealing. I wonder, how easy is it to evade these preventive strategies? What resources at a minimum are required to this end? If a considerable number of such instances was documented, can anyone provide the common characteristics of exposed or alleged forgers in these cases? I think, if it was clear when the complainant should fear falsification of the evidence by the defendant, it would be easier to prevent forgery or prevent the forged material being accepted by the court as an authentic one. For instance, if there are several defendants, it would be wiser first to file a suit against those of them who are least likely to evade justice.

I considered formulating this question without references to specific charges, I think, it would be a more interesting question, but I'm afraid it may also become too vague.

1 Answer 1

4

Falsification of evidence, forgery of documents, destruction of evidence (which is called "spoliation"), giving false testimony under oath or otherwise, and all manner of other similar conduct can make it hard to impose civil liability in the court system (or to prevent its imposition when it isn't called for), and does happen from time to time.

Sometimes it is more blatant and verifiable. Other times it involves testimony that you know is clearly false but proving that is difficult or impossible.

In my experience, medical malpractice defendants who are medical doctors routinely lie in testimony in ways that are non-verifiable, but very rarely falsify documents or provide false testimony regarding verifiable facts, frequently setting up a credibility fight for a finder of fact (i.e. judge in bench trial or jury in a jury trial). Medical doctors tend to be more honest and use fewer fraudulent litigation tactics than law enforcement officers sued in civil rights actions, but are less honest on average than business managers who are in commercial litigation who aren't in sales, and also less honest on average than professionals in mechanical and engineering fields. Fraudulent litigation conduct tends to be more common when the alleged wrongdoing is emotionally charged and personal.

Judges usually take great pains to refrain from calling any witness out for lying, unless there is unequivocal evidence that an intentional lie, rather than a situation where a failure of memory or misperception led to a disputed issue of fact.

This kind of conduct almost never gives rise to criminal charges when it does happen in civil litigation. It often leads to sanctions against the litigant who uses this tactic in the context of the court case (often quite draconian ones) and it sometimes leads to ethical complaints against an attorney for someone who does this (or who does this personally) knowing that it is being done in the case, often resulting in a lengthy suspension of a license to practice law or disbarment.

The consequences of this kind of conduct can be career ending and economically unsurvivable when a court feels that someone has done so. I've seen awards in excess of $1 billion in lawsuits involving large publicly held companies where this has been documented.

Identifying cases where this happens is more art than science, and often involves a healthy amount of good luck. There is no one strategy involved in identifying it, but seeking the same information from multiple sources and finding inconsistent results, noticing subtle irregularities in documents, understanding the context of the situation and what usually happens when people are honest, are among the methods used.

It is very difficult to defeat this fraudulent efforts to present false evidence, and even when falsification is discovered it is often discovered at such a late stage that it may be difficult or impossible to remedy the harm done. It is always more expensive to deal with these kinds of tactics, although the magnitude of the extra costs varies wildly.

Most of the time, it is never discovered at all unless the stakes in the case are so high that extraordinary efforts to leave no stone unturned are justified economically in the litigation.

There are tactics that can be taken to reduce the likelihood of misconduct (like securing access to documentation and taking witness statements as soon as possible and ideally before a records custodian realizes its significance), but none are foolproof.

A fairly typical example of this was in a securities fraud case that I once represented plaintiffs in, in which the defendant submitted one set of bank statements in response to discovery requests from us, and the same bank statements obtained by subpoena directly from the bank revealed that the defendant had photoshopped years of bank statements in an effort to deceive the plaintiffs.

Generally speaking, the larger the bureaucracies involved in the case, and the more people who were involved in the situation, the harder it is to get away with something along these lines.

For example, in a medical malpractice case, an instance of malpractice that happens in the office of a doctor who practices alone with only one staff person who is also her husband, demonstrated by a single in house document is much easier to cover up with fraud than a pattern of conduct in a large health care provider network involving encounters with dozens of professionals at multiple large hospitals generating thousands of pages of documentation, and managed by third-party administrators.

Ultimately, there is only so much you can do to hedge against the risk that parties to lawsuits will engage in fraudulent conduct. But, because of the dire consequences that arise when someone is caught red handed doing so, this kind of litigation conduct is very rare.

While false or misleading testimony on "squishy" issues of motive or opinion, or on impossible to verify points like recollections of unrecorded conversations, happens in perhaps one in five or so actively litigated cases, outright fraudulent tactics of the kinds discussed in the OP probably happens in significantly less than one case in twenty actively litigated cases, but probably does happen in at least one actually actively litigated case in two hundred cases.

In the absence of omniscience, or Wonder Woman's lasso of truth, this is the best that lawyers and the judicial system can do.

This kind of conduct is sufficiently rare that it doesn't materially upset the usefulness of the legal system for seeking recourse in civil actions. There are backstops like bankruptcy that exist, in part, in recognition of the fact that courts sometimes reach unjust results.

Far more cases are wrongly decided due to attorney or judicial incompetence in cases with a complete absence of fraudulent litigation conduct, or from the misguided whims and misunderstandings of juries in cases with a complete absence of fraudulent litigation misconduct, than are wrongly decided as a result of successful fraudulent litigation misconduct.

Also, even when fraudulent tactics are used in litigation and aren't caught, these tactics don't always turn the tide in favor of the party using them in litigation, because the people who use those kinds of tactics often don't have a good understanding of what facts are and are not legally important in their cases. It also isn't uncommon for fraudulent litigation tactics to be used in cases where the person employing them is actually in the right on the merits in the absence of these tactics, even though they are unscrupulous when it comes to their responses to accusations of wrongdoing. So, fraudulent litigation conduct doesn't always do substantive harm in the sense of producing a wrong judicial outcome, even when it is successful.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.