discussing a rale of professional conduct requiring a lawyer to “promptly” reveal a fraud to the tribunal where the lawyer “knows that a person other than the client has perpetrated a fraud upon a tribunal,” and holding that the rule “does not require an attorney to disclose the possibility that a witness might lie on the stand,” that “[a]ny defense counsel, in situations such as this, is in a difficult position” because “[i]f they disclose the impeaching information before trial, they can rest assured that the falsely testifying witness will never appear or will testify truthfully on the point that could be subject to impeachment” but “[t]hat is not to say that the same witness will be equally candid with the balance of his testimony,” and that “the burden of obtaining truthful witnesses should rest upon those who are calling those witnesses”
How later courts described this case
- discussing a rale of professional conduct requiring a lawyer to “promptly” reveal a fraud to the tribunal where the lawyer “knows that a person other than the client has perpetrated a fraud upon a tribunal,” and holding that the rule “does not require an attorney to disclose the possibility that a witness might lie on the stand,” that “[a]ny defense counsel, in situations such as this, is in a difficult position” because “[i]f they disclose the impeaching information before trial, they can rest assured that the falsely testifying witness will never appear or will testify truthfully on the point that could be subject to impeachment” but “[t]hat is not to say that the same witness will be equally candid with the balance of his testimony,” and that “the burden of obtaining truthful witnesses should rest upon those who are calling those witnesses”
- testimony of the expert witness regarding the standard of care was admissible even though he was still in residency at time of the treatment at issue, because he testified that treatment had not changed
- if impeaching information must be disclosed before trial, witness will either not appear or will change testimony
Written by the judges who cited it.
The opinion
JUSTICE STEIGMANN, specially concurring:
Although I agree with the result the majority reached, I do not agree with its delicate handling of the perjury of plaintiffs’ expert witness. The majority is much too grudging in concluding that defense counsel appropriately handled this liar. In my view, defense counsel did everything exactly right, and he should receive our congratulations without reservation.
The majority correctly points out that “[tjrials are an attempt to get to the truth of contested matters.” (236 Ill. App. 3d at 785.) However, exposing perjurers in the courtroom is at least as important to the process of seeking the truth as is the presentation of truthful witnesses. Indeed, it may be even more important because of the institutional benefits that result: (1) liars might be deterred from taking the oath and perjuring themselves in open court; and (2) lawyers might more carefully select and investigate the witnesses they intend to put on the stand, so as to avoid the devastating consequences of calling a witness whose perjury is demonstrated before the jury.
Given the concerns of everyone involved in both civil and criminal cases about the frequency of perjury from the witness stand, I view the events in this case — and the predictable result — as nothing short of wonderful, and I am unwilling to join in any opinion that suggests any merit to the plaintiffs’ whining.
Additionally, I disagree with the majority’s emphasizing that defense counsel’s cross-examination had already made inroads into the testimony of plaintiffs’ expert witness before his perjury was demonstrated. The majority’s emphasis suggests that had the expert witness’ credibility not already been damaged, our assessment regarding his perjury might be different. In my judgment, revealing the expert witness’ perjury is even more important if his testimony had been very helpful to the plaintiffs and few harmful inroads had been made by defendant.
Other than as indicated, I concur fully with the majority opinion.