Thursday, May 01, 2008

Enpalm v. Titler Family Trust (Cal. Ct. App. - April 30, 2008)

I've always found perjury an interesting subject. It seems to me that it's fairly common. Even in the civil side, in which only money (rather than liberty) is typically at stake. My belief is that the typical civil case involves an extraordinary amount of "shading" by the majority of witnesses, a healthy dose of manifest exaggeration, a plethora of convenient forgetfulness, and the not-at-all-rare occasions of outright lying. And, parenthetically, that deception of this type is often rational, and increases the expected net result of a lawsuit.

So that's a problem. Which is, in part, why I found this opinion so interesting.

It contains a great debate between Justice Rubin, who authors the majority opinion, and Justice Cooper, who dissents, regarding whether Judge Biderman (up in Los Angeles) erred when he cut 90% off of the prevailing party's contractual attorney fee award because its principal party witness was a manifest liar at trial. Justice Rubin says that's okay; that the trial court may legitimately conclude that certain fee expenditures are not "reasonable" when they are based upon a client's deliberate perjury, especially if that perjury itself gave rise to the lawsuit and/or substantially complicated it. Conversely, Justice Cooper concludes that such a rule would give trial judges way too much leeway in setting fee awards and potentially unjustly punish prevailing parties.

Justice Rubin and Justice Cooper both make very good arguments. On the merits, I tend to lean a little bit in favor of the former, though that may be in part for policy (rather than doctrinal) reasons, as I believe that this is a huge problem area and one that demands at least an attempt at a solution. Admittedly, cutting a fee award doesn't really work in the vast majority of cases, most of which neither allow recovery of fees nor even get to trial. But it's a start.

Anyway, read the debate. It's a good one. And another reason to tell your clients to tell the truth. Even when you're not so sure that's really the most economically rational decision.