Little fibs, white lies or obfuscating during testimony. I encountered this during a Queen's Bench trial that I recently ran before the Honourable Justice D.K. Miller. The witness was not just untruthful, he compounded his problems by not telling a consistent narrative. What I mean by that is that his documents told one story, his actions told another and his actual testimony told a different narrative.
The witness was a cross-examiner's dream.
The goal of cross-examining is two fold: (1) elicit evidence that helps your theory of the case; and (2) damage the credibility of the witness. In 58 minutes this witness was left with no credibility in the eyes of the court. Not because the cross-examiner was Clarence Darrow, rather it was because the witness discredited himself by ducking, dodging, evading and obfuscating questions. Further, when questions were put to the witness where it was clear he lied. Instead of acknowledging that his testimony under oath flied in the face of his previous position, he became combative and argumentative. This was not lost on the trial judge. Effectively, the witness was shooting himself in the foot.
He made my case for me.
He did the heavy lifting.
Like any litigation, the parties told different stories. In the end it was up to Justice D.K. Miller to assess who he believed. In Kuehn v. Kuehn, the court opined about credibility and said that the assessment of credibility is not a science but rather an art. Credibility of a witness has two aspects to it. First, the assessment is focused on the truthfulness of the witness. The court will ask: is the witness trying to tell the truth and not trying to be deceitful? In answering that question the court in Kuehn held that a trial judge would have to use experience, logic, the demeanor of the witness, common sense, the general integrity of the witness, their power to observe, capacity to remember and their accuracy in determining credibility.
The cross-examination of the husband allowed the trial judge to hold that the husband lied or was untruthful in the following ways:
- Was not truthful about when the parties separated;
- Was not truthful about the parties sex life;
- Was not truthful about his income;
- Was not truthful about being previously married, twice;
- Was not honest about income splitting with his wife;
- Was not truthful on financial documents that were provided; and
- Was argumentative throughout his evidence.
It was clear that the lies and the deceitful conduct were not lost on the court when it determined credibility. However, the finding that the husband was effectively a liar, opened the door to what we refer to as solicitor-client costs. Solicitor client costs are not normally awarded. They effectively result in one party paying the legal costs of the other party. They are reserved for limited circumstances.
In Jackson v. Trimac Industries Ltd. the court set out 9 circumstances where solicitor-client costs should be awarded. One of those criteria is where a party has deceived the court and that type of conduct should be deterred. Justice Miller agreed and awarded solicitor client costs and ordered the husband to pay 75% of the wife's legal bill.
The amount of those awards vary, but the costs of running a trial in Ontario were discussed in a Toronto Star article recently.
Moral of the post, don't lie under oath. It will cost you. A lot.
The witness was a cross-examiner's dream.
The goal of cross-examining is two fold: (1) elicit evidence that helps your theory of the case; and (2) damage the credibility of the witness. In 58 minutes this witness was left with no credibility in the eyes of the court. Not because the cross-examiner was Clarence Darrow, rather it was because the witness discredited himself by ducking, dodging, evading and obfuscating questions. Further, when questions were put to the witness where it was clear he lied. Instead of acknowledging that his testimony under oath flied in the face of his previous position, he became combative and argumentative. This was not lost on the trial judge. Effectively, the witness was shooting himself in the foot.
He made my case for me.
He did the heavy lifting.
Like any litigation, the parties told different stories. In the end it was up to Justice D.K. Miller to assess who he believed. In Kuehn v. Kuehn, the court opined about credibility and said that the assessment of credibility is not a science but rather an art. Credibility of a witness has two aspects to it. First, the assessment is focused on the truthfulness of the witness. The court will ask: is the witness trying to tell the truth and not trying to be deceitful? In answering that question the court in Kuehn held that a trial judge would have to use experience, logic, the demeanor of the witness, common sense, the general integrity of the witness, their power to observe, capacity to remember and their accuracy in determining credibility.
The cross-examination of the husband allowed the trial judge to hold that the husband lied or was untruthful in the following ways:
- Was not truthful about when the parties separated;
- Was not truthful about the parties sex life;
- Was not truthful about his income;
- Was not truthful about being previously married, twice;
- Was not honest about income splitting with his wife;
- Was not truthful on financial documents that were provided; and
- Was argumentative throughout his evidence.
It was clear that the lies and the deceitful conduct were not lost on the court when it determined credibility. However, the finding that the husband was effectively a liar, opened the door to what we refer to as solicitor-client costs. Solicitor client costs are not normally awarded. They effectively result in one party paying the legal costs of the other party. They are reserved for limited circumstances.
In Jackson v. Trimac Industries Ltd. the court set out 9 circumstances where solicitor-client costs should be awarded. One of those criteria is where a party has deceived the court and that type of conduct should be deterred. Justice Miller agreed and awarded solicitor client costs and ordered the husband to pay 75% of the wife's legal bill.
The amount of those awards vary, but the costs of running a trial in Ontario were discussed in a Toronto Star article recently.
Moral of the post, don't lie under oath. It will cost you. A lot.