BY MITCHELL B. LADSON JR.All practicing lawyers have cringed when a client, no matter how well prepared, states something during a deposition that is not true – for the plaintiff: a forgotten MRI 5 years ago, exaggerated pain (12 out of 10 on the pain scale a year later).
A fact of the plaintiff lawyer’s life is that plaintiffs often make mistakes at deposition, and the lawyer is faced with difficult decisions, ethically and tactically. First, the lawyer must attempt to discern if the client purposely lied, misunderstand the question, or just forget (e.g. its understandable to forget a PCP visit 10 years ago, but less understandable to forget that hydrocodone prescription you were on at the time of the wreck). Lawyers are not mind readers and are put in an uncomfortable position of attempting to discern truth and intent, while exercising their role as a zealous advocate (who am I to say what a person’s level of pain is). Of course, with signature reserved, a client is provided with an errata sheet. But how far can or should one go with an errata sheet? When zealous advocacy collides with issues, like attorney-client privilege and false statements to the court, one must pause. This paper explores some of the law that may be helpful in examining these issues when they arise.
ERRATA SHEETS AND THE PROPHECY RULE RULES ON ERRATA SHEETS
We will start with the rule on errata sheets, found at O.C.G.A. §9-11-30(e), which states as follows:
(e) Review by witness; changes; signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by paragraph (1) of subsection (f) of this Code section whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed. If the deposition is not reviewed and signed by the witness within 30 days of its submission to him or her, the officer shall sign it and state on the record that the deposition was not reviewed and signed by the deponent within 30 days. The deposition may then be used as fully as though signed unless, on a motion to suppress under paragraph (4) of subsection (d) of Code Section 9-11-32, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
O.C.G.A. § 9-11-30
Notably, the text of O.C.G.A. §9-11-30 contemplates “changes in form or substance.” This language goes beyond some lawyers’ conception of the purpose of an errata sheet, who consider it a tool to correct misnomers, spelling errors, dates, errors in transcription, or to state that an incorrect answer arose from a misunderstanding of the question. Turning to the case law, “[a]lthough our Georgia courts have not directly addressed the question of whether a witness may make substantive, material changes to his deposition, the statute expressly contemplates changes to form or substance.”1 This language contemplates a much broader use of the errata sheet than is commonly understood.
“In addition, federal courts which have addressed this issue have overwhelmingly concluded that a witness may make ‘any changes in form or substance which the witness desires, even if the changes contradict the original answers or even if the deponent’s reasons for making the changes are unconvincing.’”2 “These decisions are based on the plain language of Federal Rule 30(e), which is virtually identical to OCGA § 9-11-30(e).”3
Lawyers may stand aghast at this proposition – how can sworn testimony be changed outright within 30 days of said sworn utterances? Georgia courts have found that there are ways to avoid abuse of the errata sheet. “There are several important safeguards which curtail abuse on the part of the deponent.”4 “First, the deponent’s original answers remain part of the record and can be read at trial to impeach the witness or for further clarification.”5 This is because “a deposition is not a ‘take home examination’ and an ‘errata sheet’ will not eradicate the import of previous testimony taken under oath.”6 “Second, if the changes are ‘so substantial as to cause the deposition to become incomplete or useless without further testimony,’ then the examiner may reopen the deposition and propound further questions to the witness concerning the nature of and reason for the changes.”7 “Finally, where the deponent is a party, his self-contradictory testimony must be construed against him and cannot create an issue of fact for the purpose of summary judgment unless the contradiction is adequately explained.”8
ETHICAL DUTIES AND PRACTICAL IMPLICATIONS
Other than waiting for an errata sheet to come in, is there something a Plaintiff’s lawyer can do at the time the evidence is given if he or she knows the testimony may be untrue or misleading?
Before addressing the important “Prophecy rule,” the practical implications of the above standards should be examined. What if the client will not voluntarily alter the untrue testimony? A lawyer cannot provide testimony on behalf of the client. However, pursuant to Bar Rule 3.3(a)(4), a lawyer shall not knowingly “offer evidence that the lawyer knows to be false.” If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take remedial measures.” Bar Rule 3.3 goes on to state that the duties in 3.3(a) “continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (setting forth duties to maintain and hold “inviolate” confidential information gained in the professional relationship with a client).” Rule 3.3(c) also reads that “[a] lawyer may refuse to offer evidence that the lawyer reasonably believes is false.”
Thus, a plain reading of the bar rules suggests that a lawyer’s ethical duty of candor toward the tribunal trumps even attorney-client confidentiality. Thus, when faced with a recalcitrant client, it appears that a lawyer must not present false information regardless of the wishes of the client. Yet, given the sanctity of the attorney-client privilege, this is a dangerous collision of directives. Comment 1 to Rule 3.3 appears to make the duty clear though: “[p](a)(4) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.” It would seem then that a lawyer must submit an errata sheet if false testimony has been given. However, again, what is “false” and what is mere exaggeration or opinion must be examined. Even if a position is not credible, it may not be demonstrably “false,” e.g., my pain is a 10 out of 10 four years later after a twisted ankle. Is this a falsehood or must a zealous advocate advance the client’s position, however detrimental it may be at trial? The decision is considerably easier if there is objective evidence of falsehood – yes, the medical records show radiating low back pain a month before the wreck. In those cases, it is difficult to say that contrary testimony is anything but false, and those falsehoods must be addressed with the client and the Court.
In practice, perhaps the best way to deal with such a situation is to meet with the client, and then inform the client in writing of your ethical duties of candor toward the tribunal. If the client will not yield, perhaps withdrawal is the only appropriate step if you cannot continue the representation without violating your ethical obligations. This approach is confirmed in Comment 2 to Bar Rule 3.3: “A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.” Of course, in federal court, there are severe limitations on your ability to withdraw. Can or should this conflict be shared with the Court if it means a breach of the attorney-client privilege? I believe this is a topic that warrants discussion beyond the scope of this article.
Thus, it would appear that the answer to this quandary is that, if you are aware a false statement is made during a deposition, you must inform your client of your duties, and you must not present false evidence or testimony to the court and withdraw any testimony or evidence that you become aware is false. Thus, even if you must change “yes” to “no” in an errata sheet, it appears you must do so despite the irate calls from opposing counsel that may likely emanate. Not only is this ethically required, but a change in the errata sheet may vitiate in part the looming attack at trial. By failing to change false testimony in an errata sheet, a client may well be attacked for not just misunderstanding or speaking untruthfully once, but also attacked for failing to remedy their mistakes despite opportunity to do so.
In my practice to date, when this has come up, I have certainly used the errata sheet liberally. For instance, if there is a prior medical care that comes up that a client genuinely forgot on deposition, I submit an errata sheet identifying the prior care. Also, during a deposition, a careful advocate may take a break if a client forgets or strays from the truth (unintentionally), and let the client correct what are true mistakes during the deposition. Opposing counsel may not like it, but is it better than allowing testimony (or omitted testimony) that can be construed as a lie under oath – and by not intervening, is the lawyer allowing false testimony to be given? Of course, if the client insists that the defendant really was going 120 mph while texting with a blindfold on, then a lawyer would probably be wise to evaluate their case before letting such testimony be offered under oath.
THE PROPHECY RULE: A LIMITATION ON THE IMPACT OF ERRATA SHEETS AND CONFLICTING AFFIDAVITS THE RULE
The “self-contradictory testimony rule” has been firmly entrenched in Georgia law for well over a century.9 “The rule states that: (1) the testimony of a party who testifies on their own behalf at trial is construed against them whenever it is self-contradictory, vague, or equivocal; and (2) whenever the only evidence in support of a claim or a defense is the favorable portion of a party’s self-contradictory testimony, the other party is entitled to a directed verdict as a matter of law.10
The enforcement of this long-standing rule in the context of a summary judgment motion was clarified in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986). Prophecy involved a suit by Charles Rossignol, a former representative of Prophecy Corporation, against Prophecy for unpaid commissions. Rossignol gave deposition testimony about a critically important conversation with the president of Prophecy, and then, on summary judgment, provided an affidavit that contradicted his deposition testimony. The trial court granted summary judgment to Prophecy, finding that the affidavit intentionally contradicted prior deposition testimony. The Court of Appeals reversed, concluding that Rossignol’s testimony did not warrant the grant of summary judgment, as it did not “rise to the level of an intentional contradiction.”
The Georgia Supreme Court affirmed the Court of Appeals and established the “Prophecy rule,” which requires trial courts, when considering summary judgment motions, to (1) eliminate all portions of a party’s self-contradictory testimony that are favorable to, and left unexplained by, that party; and, (2) consider the remaining evidence in favor of the party opposing summary judgment.11 For purposes of the Prophecy rule, testimony is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.”12 “In Prophecy, the respondent offered a reasonable explanation for the contradictory testimony, and the favorable portion of the contradictory statements was, thus, not eliminated, and a fact issue remained precluding the grant of summary judgment.”13
It is important to note that Prophecy applies “only in situations where the favorable portion of a party’s self-contradictory testimony is ‘the only evidence of his right to recover or of his defense’ that the opposing party is entitled to summary judgment.”14 “Stated differently, the Prophecy rule does not apply in summary judgment proceedings when, after the rule is applied to exclude certain testimony, there remains uncontradicted testimony to support a claim or defense.”15 Counsel thus must carefully examine and challenge an attempt to apply the Prophecy rule when other evidence exists to support a claim or defense.
Also, “where a reasonable explanation of the contradiction is offered, the inconsistency will not be construed against the party-witness.”16 “The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.”17 Thus, if an advocate can provide a reasonable application for any inconsistency, it must be done to avoid the consequences of Prophecy.
“Specifically, the Prophecy rule is aimed at discouraging a party’s temptation to commit perjury during a civil trial’s summary judgment phase”: The rule must necessarily be applied to summary judgment proceedings, otherwise “any opposing party may, by the simple device of filing conflicting affidavits, get the motion denied. The temptations to perjury are greater in this situation than in a jury trial.”18
The Prophecy rule applies in summary judgment proceedings, and is “separate from those rules allocating burdens of proof” at trial.
Counsel must use great care in submitting any affidavits post-deposition that even arguably contradict deposition testimony or risk losing the case on summary judgment. Also, in opposing the attempted misapplication of the rule, counsel should remember that the testimony “is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.”19 This distinction can be a difficult one. For instance, in Gilstrap, Plaintiff stated in an interrogatory response that defendant “turned loose of the ladder and ran off.” Plaintiff, however, said nothing about defendant letting go of the ladder on deposition and testified that the only thing defendant could have done to prevent the injury was to tie a rope to the back of the tree limb to pull it away as he fell. The Court of Appeals declined to apply the Prophecy Rule and reversed the trial court’s grant of summary judgment, holding that “the fact omitted from [plaintiff’s] deposition testimony…does not conflict with his earlier interrogatory; the answer is merely fuller, more expansive, and complete.”20 Thus, it appears one must carefully read interrogatory responses and deposition testimony and be prepared to argue that any alleged inconsistency is
a direct contradiction in order for Prophecy to apply.
The Prophecy rule may be applied both to a movant for summary judgment as well as a respondent:21
If a movant for summary judgment provides a reasonable explanation for a contradiction, the inconsistency will not be construed against him. However, contrary to the Court of Appeals’ further holding, the reasonable explanation merely permits the favorable portion of the contradictory testimony to remain as evidence to be considered; the reasonable explanation does not operate to eliminate the unfavorable testimony so as to establish any fact authorizing the grant of summary judgment. The reasonable explanation does not act to exclude the existence of an issue of fact, if such is raised by the party’s contradictory statements them-selves, or by other evidence presented by the opposite party.22
“However, where a party’s explanation for a contradiction is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” Id. So, the Prophecy rule can also assist plaintiffs when defendants offer contradictory testimony on summary judgment, particularly by supplying self-serving affidavits in support of summary judgment.
OTHER LIMITATIONS ON THE PROPHECY RULE
The Prophecy rule does not apply to the testimony of a non-party witness.23 “It does not apply to unsworn statements […] or contradictions between a party’s testimony and another person’s testimony.”24 However, if a witness under oath testifies that an unsworn statement is true and accurate, incorporating that unsworn statement into sworn testimony, Prophecy should be applied. Id.
The rule does not apply to the testimony of a non-party expert witness.25 In Thompson, the Georgia Supreme Court explained the underpinnings of this limitation:
In applying Prophecy’s self-contradictory testimony rule, our precedent has remained clear that the rule applies only to the testimony of parties to a case, and not to the testimony of witnesses who are not parties. Likewise, the Court of Appeals has declined to extend the Prophecy rule to anything other than the testimony of a party or a party witness.
There are compelling reasons why this precedent should remain undisturbed. Because a party to litigation is without power to pre-vent his or her witnesses from contradicting themselves when testifying, the party should not be held responsible under Prophecy when such contradictions inevitably arise in the testimony of expert witnesses. Furthermore, simply because an expert witness’s testimony is contradicted is no cause for disregarding it under the Prophecy rule — the fact that an expert witness’s testimony is contradictory has never rendered that testimony inadmissible. To the contrary, such contradictions go solely to the expert’s credibility and are to be assessed by the jury when weighing the expert’s testimony.26
The rule also does not apply to an unsworn, extrajudicial declaration even of a party-witness, which contradicts a subsequent sworn statement by that witness.27 Thus, one must not just examine who made the allegedly contradictory statement, but the context in which the statement was made.
The well-prepared lawyer may avoid these pitfalls by getting every old medical record (old primary care doctors records and pharmacy records can contain land mines), and addressing them with the client. Prepare the client at length and in detail and stress the maxim that a case cannot be won on deposition, but it can be lost. But even the most careful practitioner may miss something, and even the best-prepared client can get nervous and wander into dangerous territory. In conclusion, it appears that the first goal of the lawyer should be to obtain the truth as early as possible. The lawyer must prioritize his or her duty of candor to the tribunal, while also keeping the client informed at every step, and when privilege and the duty of candor collide, tell the client what your duties are. With regard to the errata sheet, I believe that getting the truth out first and promptly correcting the mistake, is going to help you not only stay within ethical boundaries, but also give you some cover at trial when the attacks come. A jury may understand anxiety under deposition and give credit for coming clean after the fact. Sitting on bad information for months does not make it any better, and a jury may be less forgiving of mistakes uncorrected until the time of trial.
Likewise, I have had the defense attempt to misuse Prophecy. Read the testimony carefully before conceding a contradiction on summary judgment if Prophecy is used as a sword against you. But, certainly swing the sword of Prophecy when the motion for summary judgment rolls in with 10 post-deposition affidavits rife with “clarifications” in the guise of a changed story. ●
Mitch Ladson is an attorney with Gary Bruce Law out of Columbus. A graduate of Emory University and Tulane University Law, his practice primarily focuses on cases involving car wrecks and commercial vehicles with significant injuries. Mitch can be reached at email@example.com.
1 J.H. Harvey Co. v. Reddick, 240 Ga. App. 466, 473–74, 522 S.E.2d 749, 755 (1999).
2 Id. citing Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill.1981); see also, e.g., Podell v. Citicorp Diners Club, 112 F.3d 98, 103 (2nd Cir.1997); Innovative Marketing &c. v. Norm Thompson Outfitters, 171 F.R.D. 203, 204-205 (W.D.Tex.1997); Allen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 340 (S.D.N.Y.1970); 474 Colin v. Thompson, 16 F.R.D. 194, 195 (W.D.Mo.1954).
3 Reddick, 240 Ga.App at 472.
5 Id; Scarbrough v. Dover Elevator Co., 232 Ga.App. 149, 153(a) n. 5, 500 S.E.2d 616 (1998); Lugtig, supra at 641.
6 Reddick, 240 Ga.App. at 472 (emphasis added), quoting Rios v. Welch, 856 F.Supp. 1499, 1502 (D.Kan.1994), aff’d, Rios v. Bigler, 67 F.3d 1543 (10th Cir.1995).
7 Reddick, 240 Ga.App. at 472 (emphasis added), quoting Allen & Co., supra at 341; see also Lugtig, supra at 642.
8 Reddick, 240 Ga.App. at 472 (emphasis added); see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-29(1), 343 S.E.2d 680 (1986).
9 Thompson v. Ezor, 272 Ga. 849, 851, 536 S.E.2d 749, 751 (2000).
10 Id. (Emphasis added).
11 Thompson v. Ezor, 272 Ga. 849, 851, 536 S.E.2d 749, 752 (2000).
13 Gentile v. Miller, Stevenson, & Steinichen, Inc., 257 Ga. 583, 583, 361 S.E.2d 383, 384 (1987).
14 Korey v. BellSouth Telecommunications, 269 Ga. 108, 109, 498 S.E.2d 519 (1998)(Emphasis added).
15 Thompson, 272 Ga. at 851.
16 Gentile v. Miller, Stevenson, & Steinichen, Inc., 257 Ga. 583, 583, 361 S.E.2d 383, 384 (1987).
18 Thompson v. Ezor, 272 Ga. 849, 852, 536 S.E.2d 749, 752 (2000).
19 See Bradley v. Winn–Dixie Stores, 314 Ga.App. 556, 557–558, 724 S.E.2d 855 (2012)(emphasis added); Gilstrap v. Head, 242 Ga. App. 495, 495–97, 529 S.E.2d 661, 662 (2000)(emphasis added); quoting Smith v. Vencare, Inc., 238 Ga.App. 621(1), 519 S.E.2d 735 (1999).
20 Gilstrap, 242, Ga. App. at 496.
21 Gentile v. Miller, Stevenson, & Steinichen, Inc., 257 Ga. 583, 583, 361 S.E.2d 383, 384 (1987):.
22 Id. (Emphasis added).
23 Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 82, 799 S.E.2d 242, 244 (2017), reconsideration denied (Mar. 29, 2017), cert. denied (Oct. 2, 2017)(court declining to apply Prophecy rule when testimony at issue was -non-party manager of defendant).
24 CSX Transp., Inc. v. Belcher, 276 Ga. 522, 523, 579 S.E.2d 737, 739 (2003).
25 Thompson v. Ezor, 272 Ga. 849, 852, 536 S.E.2d 749, 752 (2000).
26 Thompson,272 Ga. at 852 (Emphasis added).
27 Shiver v. Norfolk-S. Ry. Co., 269 Ga. 168, 169, 496 S.E.2d 903, 904 (1998)(pre-suit explanation of incident to claims agent that contradicted subsequent sworn interrogatories could not be used to apply Prophecy and cause sworn testimony to be construed against him).
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