Non-Answers, Conclusions, Opinions, and Deductions are not Perjury

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Edwin Johnson (“Johnson”) sued the law firm Gardiner Koch Weisberg & Wrona (“GKWW”) and one of its partners for legal malpractice. In that matter, Johnson’s attorneys deposed this partner at GKWW. Many of their questions called for this GKWW partner’s recollection and interpretation of events, communications, and documents from more than four and a half years prior. Johnson believed the partner’s answers to seven sequences of questions in her deposition were false, and petitioned the Court to hold her in criminal contempt.

In a petition concerning alleged perjury, a petitioner must adequately allege that (1) the deponent’s testimony was false and untrue when made; (2) the deponent knew the testimony was false when she gave it; and (3) the deponent had a willful and malevolent intention of assailing the dignity of the court or of interfering with its procedure and the due administration of justice. The Court added to this standard that “an alleged false statement must be a statement of fact and not a conclusion, opinion or deduction drawn from given facts. [internal citation omitted]. Moreover, a truthful answer to a question subject to various interpretations is not perjury.” Id. at 2.

Applying this framework, the Court found that none of the GKWW partner’s contested responses constituted perjury. For example, she was asked to interpret a document, to which she responded “no, I can’t answer that question.” Id. at 3. The Court explained that a non-answer is not a basis for perjury, and that “had a direct answer been given, a witness’ interpretation cannot be the basis for perjury.” Id. The partner was also asked if she was told Johnson had done anything fraudulent. She answered, “no, I can’t recall, no.” Id. at 4. Johnson claimed that this was false because she participated in an investigation of him. “However,” the Court declared, “the question wasn’t whether she participated; the question was whether anyone told her.” Id. As to whether the GKWW partner “assail[ed] the dignity of the court or […] interfere[ed] with its procedures and the due administration of justice” by her actions, the Court found the allegation insufficient on its face given there was no allegation of intent. Id.

The Court found it “clearly apparent” that Johnson’s allegations were factually insufficient and dismissed with prejudice. Id. “Being a witness in hotly contested litigation is difficult enough,” it explained. Id. “If in addition we permit the sword of Damocles to be poised over [witness’] heads in the threat that for any false statement made on the witness stand they may be summarily punished for contempt, we are hindering and not advancing the cause of justice.” Id.

Order dated May 29, 2020

(This is for informational purposes and not legal advice.)

Illinois Legal Malpractice and Defense of Lawyers Blog — Novack and Macey LLP