By: Lisa R. Gorman

From the time I was a child, I wanted things to be fair. It’s not fair when your brother hits you, but you get in trouble because your parents saw you hit him back and he denies starting it. It’s not fair when your friend drops your laptop and your parents won’t replace it because you were irresponsible. Watching me fret over unfairness, my grandmother advised me to become an attorney.

Litigation teaches us there are two sides to every story, and perception plays a significant role in shaping our reality. And memories fade, some faster than others. However, taking perception and memory into consideration, we often see cases where fabrication is the only explanation.

The stories are diametrically opposed. Plaintiff alleges he informed a superior of his disability prior to his termination; the supervisors contend they had no idea plaintiff was suffering from an illness until receipt of the lawsuit. Plaintiff contends a superior sexually harassed her; the supervisor contends plaintiff asked him out and he politely declined. Plaintiff alleges a manager said he was getting old and should consider retiring; the manager says he never made either comment, but plaintiff spoke of retiring at the end of the year. One side is lying, and our best chance of a defense verdict is to prove it’s plaintiff.

The greatest litigation tool for exposing lies is the deposition. Since attorneys prepare their clients for deposition, our best hope of proving plaintiff a liar is to depose him before his attorney has the information with which to prepare him. As it is plaintiff’s burden to prove his case, shouldn’t the defense be permitted to take his deposition without providing him information that helps him develop his story? Often defense counsel notices plaintiff’s deposition promptly upon answering the complaint. Plaintiff’s attorney then claims he is unavailable for several months and, in the interim, propounds discovery. Of course, responses are due before plaintiff’s counsel is available for his client’s deposition. The law permits this tactic, as California Code of Civil Procedure section 2019.020 provides, “the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” If a savvy plaintiff’s attorney can stall his client’s deposition until he has the defendant’s discovery responses — from which he can formulate a consistent story — our greatest litigation tool is weakened. My nine-year-old self is screaming from the rafters, “that’s not fair!”

For any questions, please contact Lisa Gorman at [email protected].