Monday, October 30, 2006

Pinard v. Clatskanie School Dist. 6J (9th Cir. - Oct. 30, 2006)

When I started to practice law, I was surprised -- not shocked, but nonetheless surprised -- at how often the participants (especially parties and interested witnesses) would commit perjury. They'd do so even when it was, in my mind, fairly clear to everyone that they were lying.

Sure, you couldn't prove that they were lying. There'd be no videotape that demonstrably indicated that the witness was telling a fib. And even if there was, the witness would just claim that they were mistaken, and you couldn't prove that they were knowingly committing perjury. And, to further the point, many (though by no means all) of these untrue statements entailed saying "I don't recall" to things the witness assuredly did recall. These statements are something that, again, you can't prove are untrue. Who knows, after all, what's actually in the memory of the witness?

Nonetheless, everyone in the room would know -- at least if they weren't a blind and partisan advocate -- that the witness was lying. Which somewhat surprised me. I'd have originally thought that people would be a tiny bit more reluctant to commit perjury than they actually are. At least in civil cases. Or, at a bare minimum, when the amount at stake either wasn't a large amount of money or wasn't the money of the witness.

But, very often, that ain't how it is. At least in my experience (and judgment). Instead, when it's convenient and helpful to do so -- and when you can't definitively get caught -- parties and interested witnesses often lie. Sad, but true.

I've thought about this distressing reality a fair amount over the years, and have some plausible reasons why this might be the case. Some are obviously attitudinal -- perhaps integrity doesn't count very much anymore (if it ever did), at least in the context of litigation. Others may be structural; for example, the importance of summary judgment (and the doctrinal standards thereto) increases the impact -- and value -- of strategic lies, as does the fact that litigation is (increasingly) expensive and that most cases don't go to trial, since strategic perjury may thus rationally result in a higher settlement awards as well as obviate the need to testify at trial (a trial that would increase the visibility of the lies). Other influences are the fact that perjury prosecutions are exceptionally rare and that there are no substantially effective sanctions for telling a lie in civil proceedings.

That's a whole other story, however. Why am I saying all this? As usual, no point, really. The topic just came to mind when I read this case. Which raises interesting constitutional issues of its own, and involves whether a school may permissibly discipline members of a basketball team for exercising their First Amendment right to petition to get rid of their allegedly abusive coach and, thereafter, refusing to play for him. Judge Fisher, in a well-reasoned and fairly comprehensive opinion, holds that the act of petitioning is protected (even though it doesn't involve a matter of public concern -- seems right to me), but that refusing to play for the coach in an important game was "conduct" and that could permissibly justify kicking these individuals off the team. As a result, Judge Fisher remands the retaliation claim to see whether the protected conduct (petitioning) was a substantial factor in the discipline.

So the underlying dispute was interesting. But equally interesting, in my mind, was the testimony of several of the parties. It's very rare when one can get a sense, even on a totally cold record, that the parties are total liars. But that's true here. I won't recount the precise factual details here, and one really needs to read the entire opinion to get an accurate sense of things. But nonetheless it's my firm conviction that there were classic (and pervasive) examples of perjury here. As but one example, look at the testimony discussed in footnote 8, in which two the plaintiffs seem fairly clearly (at least to me) to change their testimony based both on what's required to win the lawsuit as well as once they were told what the other plaintiff had said during his deposition. Or, for just one example involving the defendants, the testimony discussed at page 17998, in which two of the defendants testify that they "can't recall" what was said at a crucial meeting that I'm quite positive they distinctly remember. (Not to paint the lawyers with similar sleaze, since I don't think it honestly applies, but take a look also at footnote 9, which mentions that counsel for plaintiffs on appeal also included in the record and cited to several declarations that had been struck by the district court below, without noting or mentioning that this testimony had been stricken.)

The "creative" testimony here is, in my mind, typical of the conduct of witnesses in many civil actions. And it's distressing. Particularly since I don't anticipate a solution to this problem anytime in the near -- or even long-term -- future.