The truth, and nothing but the truth?

June 18th, 2013 by Lapekas Law Staff

The story of Pinocchio is lost to many people. A fairy could tap someone on the shoulder and warn him that “a lie will keep growing and growing, until it’s a plain as the nose on your face,” and that person will then literally (literally, at least for poor Pinocchio) make a jackass of himself on his way home! And his only reprieve from an extended sentence? Good behavior!

As a trial attorney for the IRS, I saw a surprising number of instances in which taxpayers weaved inventive stories and even went to great lengths to create documents to support their tall, and in the case of substantiating claimed deductions, expensive, tales. You might ask, what’s so surprising about people trying to deceive the IRS? Answer: What is surprising is that people fail to appreciate the power of the truth, (or in many cases, silence) when time and again lies exacerbate problems or even create new ones.

History is replete with stories of people who were ultimately punished for crimes or wrongs they committed while they were under investigation for another. Think, President Clinton. He was not impeached for the allegations surrounding “Travelgate” or “Whitewater.” Rather, he was impeached by the House of Representatives on “perjury” and “obstruction of justice” charges—which charges were based on President Clinton’s actions during the investigation for other alleged abuses. Think, Martha Stewart. Though she was under investigation for securities fraud, she did not wear an ankle bracelet for acting on insider information. Instead, she wore it for lying to the government agents who were investigating her “serendipitous” decision to sell stock the day before it tanked. The list goes on…

I conducted or sat through numerous trials in which a large part of the trial concerned impeaching[1] the credibility of the witness. Usually, the fodder for the impeachment was the witness’s statements made either during the IRS audit of his tax return, during the discovery stages of litigation, or even under oath in court. A witness could offer hours of credible testimony, but all is forgotten or thrown into question when any part—however small—is shown to be untrue. The colloquialism “one bad apple destroys the barrel” could not be more appropriately applied to false testimony and one’s character.

As a trial attorney, I have learned to take nothing personally. In litigation, most parties play to win—not play to destroy the other side (you’d like them to be able to pay that judgment, after all!). However, despite the number of times I have been lied to, I can’t help feeling slightly offended every time. And I don’t think I’m alone. Because I can tell you, there’s little that brings more pleasure to a trial attorney than to know he will be able to impeach a witness who has looked him straight in the eye and lied.

Think an audit or tax litigation is stressful? Try going through it when the IRS takes it personally.

And remember . . . “It is better to offer no excuse, than a bad one.” (Credit to George Washington)[2]


[1] I can’t assume everyone knows what “impeachment” means in the context of a trial. During one trial a Tax Court judge asked me why I was pursuing a certain line of questioning. I replied, “Solely for impeachment purposes, your Honor.” The witness, looking shocked, stammered, “Wh—wh—WHY am I being impeached?” So, in case there’s any question, according to, “impeach” means “to cast doubt on; especially : to challenge the credibility or validity of <impeach the testimony of a witness>.”

[2] Somewhere in Intro to Law 101 I believe there was an instruction explaining that any citation to a dead guy who wore a wig and short pants lends credence to a lawyer’s writing.