Why you Should Always Tell the Truth to Your Lawyer and When Testifying
Strangely, there appears to be no statutory requirement that you must tell the truth when testifying, however, the requirement is clearly implied. The requirement to tell the truth is generally understood and procedures for a witness to commit to tell the truth are set out in statute and are familiar to those who have experience in the courtroom or even those who watch television or movies.
Raise Your Right Hand…
The typical manner involves the witness taking the a bible (the Old or New Testament in their hand) and swearing that the evidence given “shall be be truth, the whole truth and nothing but the truth, so help your God”. There are several variations that address different religions and beliefs. A simple affirmation is ultimately all that is required and is of no less effect than swearing on a holy book or religious object.
Since the COVID 19 pandemic and with the rise of virtual hearings, affirmations are far more common as people were often testifying from places other than courtrooms or court reporters’ offices where a bibles and other religious texts are on hand.
The important thing is that a witness acknowledges that they are bound by their conscience to tell the truth.
Credibility and Perjury
In a civil action, while you could be charged with perjury for failing to tell the truth this is exceedingly rare. The legal and moral requirements should be sufficient, nonetheless, there are a number of very practical reasons why you should be candid and truthful throughout a law suit, both with your lawyer and when testifying.
Most experienced lawyers will tell you that cases where there are credibility issues are more complicated, take longer, are more stressful, more expensive and have less favourable results. If you do not tell the truth, it degrades your credibility and the credibility of your case. It makes it more difficult for you to proceed to trial and increases your risk and decreases the risk on the opposing parties. It is best to take credibility out of the equation by telling the truth.
Be Honest With Your Lawyer
Every case has strong points and weaknesses. Some pieces of evidence will be favourable and some will not. You should speak with your lawyer and develop a strategy to deal with these. Your lawyer needs to know about the bad parts as much as the good parts, so that they can give you the best advice and be well prepared as the case progresses. Generally speaking a lawyer can deal with the weak points in your case. If they cannot, the time to find that out is at the beginning.
Credibility issues can also cause ethical issues for your lawyers, and might affect how they can conduct the case or whether they can act at all. A credibility issue could potentially cause your lawyer to withdraw from your case. The Code of Professional Conduct prevents a lawyer from knowingly assisting or permitting the client to do anything that the lawyer considers to be dishonest or dishonourable or from knowingly attempting to deceive a tribunal or influencing the course of justice by offering false evidence. A lawyer may not be able to call a witness if they have grounds to believe that witness will be untruthful, worse yet a lawyer might need to withdraw from a case if failing to do so would permit a client to be dishonest.
Court Cost Considerations
If a party perjures themselves or knowingly leads false evidence this can lead to an award of costs increased costs. In Ontario we have a “loser pays” system with respect to court costs. Generally costs are awarded on one of two scales “partial-indemnity costs” being the lower scale, and “substantial indemnity costs” being the higher scale. If a court finds a party has been untruthful it could be a factor in awarding increased costs. In Hawley v. Bapoo, for example, the court held that “the costs sanction is one of the few ways a court can signal its disapproval of such conduct and make it clear to other litigants that it will not be condoned”.
Finally, telling the truth is also the easiest thing to do. If you tell a lie, even what you perceive to be a little white lie, it can be hard to keep the story straight. The best course is to avoid those problems and just be honest, truthful, and forthright throughout your case. Because the truth never changes.
This post is offered for informational purposes only and is not intended as legal advice. If you are seeking a personal injury, employment or long-term disability lawyer in Burlington, Hamilton, Brampton, Niagara Falls or another Southern Ontario city, please contact Cook Reynolds today for a free consultation.