Category Archives: Polygraphs & Lie Detectors

The blog does not know what to make of today’s Eleventh Circuit ruling that affirmed a $350,000 sanction award against a prominent Florida employment lawyer. The opinion was highly fractured. Judge Carnes, generally considered one the most conservative jurists in the country, wrote the 80 page majority opinion. A visiting judge, as most visiting judges do, went along with the decision but dissented from a small portion that was not actually relevant to the outcome. Judge Tjoflat, not know for being terribly pro-plaintiff, wrote a forceful dissent.
But no one actually knows what the case was about. In a nutshell, the plaintiff — who alleged sexual harassment and sexual abuse at Denny’s restaurant by her supervisors and co-workers – apparently lied or had some form of highly selective memory during her deposition. The deposition took place over several weeks and was complicated by the fact that the plaintiff spoke only creole. (Judge Carnes made a point of noting that the plaintiff was an illegal immigrant — although this of absolutely no legal consequence and isn’t relevant to the court’s opinion). The plaintiff’s counsel filed an errrata sheet consisting of nearly 70 pages and over 800 changes — many of which were materially different from her actual deposition testimony. According to Judge Carnes’ opinion, the plaintiff’s attorney was sanctioned personally to the tune of $350,000 because of the errata sheet.
This conclusion is exactly what Judge Lenard concluded — the errata sheet should never have been filed because the plaintiff was a giant liar and everyone knew it.
The Eleventh Circuit’s key holding is this: “The Amlongs’ submission of the novella-length errata sheet making a slew of material changes in their client’s deposition testimony was improper.” But the court can’t seriously mean this and it hasn’t fully considered the implications of its own ruling. Witnesses have a right under the Federal Rules to file an errata sheet to make modifications and clarifications to their deposition testimony — obviously they cannot change answers from “yes” to “no” without a good explanation. Moreover, attorneys’ have ethical obligations to correct faulty testimony when the client says she made a mistake. In fact, and as Judge Carnes correctly points out, a district judge may strike an errata sheet if it materially changes the testimony. (Judge Tjoflat, in dissent, argues that the district court should have done exactly that and nothing else).
Judge Carnes also faulted the Amlongs for continuing to prosecute the case after the errata sheet was filed. This may be but it rests on the assumption — and it is taken as conclusive by the Eleventh Circuit — that the plaintiff is a total liar and that nothing she says can be taken as true. Witnesses and parties lie – and juries are really good at figuring out who is lying and who is telling the truth. The court has essentially condoned a district court’s decision ruling that a party lacks all credibility and is a giant liar. This is a stretch, even for federal courts. What makes the situation more troublesome is the fact the plaintiff’s counsel had the plaintiff take not one but two lie detector tests — she passed both. The court categorically discounted the fact that the plaintiff passed both lie detectors by concluding that (a) lie detectors can be faked and (b) the results are not admissible. This too seems to miss the bigger point — the plaintiff gave incredible and highly conflicting testimony and she passed two lie detector tests. The district court and the Eleventh Circuit has essentially trumped what historically were jury questions.
The blog is concerned that district courts will make even more credibility determinations than they already do and will dismiss even more meritorious lawsuits that are not necessarily airtight. Only time will tell but there is no reason to believe that this case — which is a jurisprudential outliar – will be treated as such by trial judges.
It seems to the blog that the court was more interested in the fact that the plaintiff’s case was extremely weak and was plagued by both the plaintiff’s changing testimony and the lack of corroborating evidence (when, under the facts of this particular case, corroborating evidence should have been discovered).
The blog is also concerned with the manner in which the court dismissed the value of having the plaintiff tested via polygraph. Many rapes and sexual assaults are unwitnessed — only the victim and the rapist are present. It is standard practice for plaintiffs to be undergo polygraphing before filing an unwitnesses sexual abuse lawsuit. Many lawyers do it as a matter of course to protect themselves from being victimized by a lying plaintiff. Judge Carnes acknowledged that this was done for “self-preservation” and to defend against future ethical issues. But what is wrong with that? Do we not want attorneys to go the extra mile to test their own clients’ veracity? This sends a terrible message to attorneys — don’t polygraph your clients because it won’t help if a court decides that your client is a liar.
Judge Tjoflat’s dissent is interesting (so interesting that Judge Carnes spent many pages going out of his way to criticize it). He concluded that the document, albeit labeled an errata sheet, was actually just a letter to the defense counsel acknowledging the plaintiff’s false deposition testimony. Accordingly, the plaintiff’s counsel was just doing what her ethical obligations required of her, and thus she could not be sanctioned.
The full opinion is here:
Amlong Sanctions
Given the highly fractured opinion, the blog suspects a rehearing en banc or a certiorari petition is warranted. Either way, this opinion – if left as is — will have far reaching implications well beyond this case and will probably chill civil rights lawsuits where the case is not open-and-shut.