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How to lose an MSPB appeal: attack Agency witness as liars.

How to lose an MSPB appeal: attack Agency witness as liars.

The next post in the series “10 Ways to Lose an MSPB Appeal” discusses a common problem in appeals before the Merit Systems Protection Board (MSPB) – attacking Agency witnesses as liars, without evidence.

Now, people do lie. It’s a fact of life that unfortunately seeps into just about every courtroom at one time or another. However, not every statement that doesn’t echo your version of events is necessarily a lie. Sometimes a witness is just stating the version of events as they perceived it, not as you did.

However, most pro-se appellants in the MSPB (and even quite a few who are represented by an attorney) want to just come out and tell the Judge “Mr. Smith is a liar – that’s not what happened”. I’ve heard this happen during settlement talks, pre-hearing conferences, and worst, at the hearing. Simply telling the Judge that someone is lying isn’t going to get you anywhere – and it may make the Judge less inclined to want to listen to your story. This is a natural phenomena – think about the last time you heard someone accusing someone of being a liar without anything to back up their story. Did you get tired of listening to them? Did you, in your mind, decide that they were not being reasonable?

The better strategy in the court-room is to show the Judge that the witness is lying, and let the Judge draw that conclusion him or herself. You should use your time on cross-examination of a witness to show the Judge that a witness is lying. On cross, there are, generally, three ways to attack a witness who you know is lying: attack their perception, a bias they might have, or their credibility. Let’s talk about each.

Perception. If someone has a perception problem, it means there was a flaw in the way they saw certain events transpire – they weren’t in the room, they heard about the event from someone else and don’t have firsthand knowledge, they were talking to another person and couldn’t really hear what was said – are all common examples of a “perception problem”. You can make a witness look less credible by challenging the way they perceived the events – and it’s much more effective than just saying, “Judge, so-and-so is lying”.

Bias. Bias is a common reason for someone to tell a different version of a certain event. Here are some examples of potential bias: The witness is a life-long friend of the person whose testimony she is corroborating. The witness will get into trouble with his supervisors if he didn’t give the version of events he gave. The witness has a tendency to say bad things about individuals of a certain race. Again, use your questioning to bring out the bias rather than just say the witness is a liar.

Credibility. When folks hear “Credibility” they immediately think “honesty” or “integrity”. Credibility in a legal sense is a little different – if a person’s version of events don’t “mesh” with common sense, basic human experience, or other facts that have been testified to, they may not have much legal credibility. This is the most effective way to attack a witness who is not telling the truth. By discussing the inconsistencies mentioned above, a Judge will start to view the witness as less than credible, and will give his or her testimony little or no weight.

As an appellant in the MSPB, you have a tool available to you that can help you show a Judge that a witness is less than credible: the deposition. Depositions recorded by court reporters can be expensive, running $200-$400 per hour, depending on how fast or slow you talk. But the advantage is that you “lock-in” the witnesses testimony – if they change their story at hearing, you have them “dead-in-the-water”. Better yet, you know in advance what they will testify to, and can spend more time looking for bias, perception problems, and credibility issues.

If money is a concern, the MSPB does allow individuals to take “tape-recordings” in lieu of depositions, for those interested in saving some money. But there are drawbacks – tape recorded statements are hard to use at a hearing – you have to fumble around the tape to find the right spot. Then, there’s always the evidentiary question of authenticity….more on all of this, later.

The bottom line is this – if you know a witness is going to lie, or is lying, show the Judge how that is happening. Don’t just blindly attack the witness by calling them a liar….it makes your case far less credible, and alienates the person who will have to find in your favor – the Judge.