Politics, Work, and the Duty to Lie

As I watched the confirmation hearings of Judge Sotomayor, I was struck with how dishonest everyone was.  One distortion after another (as noted previously by liberal law professor Seidman).  Then, as I watched the pundits discussing the merits of the judge’s record, they would occasionally discuss other political matters, such as Obama’s urgency for passing a healthcare reform bill.  Once again, I heard the politicians blatantly skew the facts, mentioning little bits and pieces of truth, along with the obligatory “buzz words,” all obviously twisted to mislead the unsuspecting public. 

Then it occurred to me: this all seems eerily familiar.  There is a reason for that.  I have worked in two large international law firms. 

In litigation, the name of the game is persuasion.  You must persuade the judge, and on rare occasions a jury, that your legal position is correct.  Over the course of a lawsuit there are numerous occasions where one side must attempt to persuade the judge of its position.  There may be battles over where the lawsuit will be litigated, what information must be exchanged, how it must be exchanged, whether the stated claims are legally valid, whether there is sufficient evidence to even have a trial, etc.  In all these battles, the side submitting a motion to the court has more information than the court and the other side does.  That means you paint everything to your client’s advantage, and reveal as little as possible that will hurt your client.  That, in itself, does not seem to be a huge problem; everyone has their side of the story.  However, in my career, it has led to little things like this: I drafted a motion that informed the court that 16 people did something.  However, it would look better if more people had done it.  Therefore, the partner revised the brief at that point to say “about 20.”  Not really a lie…but you get the point.  This wasn’t mere “spin.”  If I recall correctly (this was some time ago), there was no way for the court to check and find out the actual number, because we didn’t tell the court what it was.  It is not as though saying “about 20” where we could’ve said “16” abbreviated the brief in any way.  I didn’t sign the brief, so it wasn’t my decision, but I certainly felt a little unsavory.  Like a politician. 

Why can’t everyone just be completely honest and let the court (and the public) decide the matter without all the unfair slanting of facts?  Because we lawyers are paid to be advocates, not to be “fair,” and if there is some other guy that’s just as skilled a lawyer that will paint the facts in as extreme a way as possible to benefit the client, then all the other lawyers must do so to keep up (or clients will flock to that other lawyer, who will become very rich).  Similarly with politicians: if you don’t skew the facts, you will get bullied and the other guy will “win” (and you’ll quickly be out of a job). 

And that is why we have this nice quote from an interview with Texas University professor J. Budziszewski:

What do you consider to be the top threats to engaging in ethical business practices?

Budziszewski: The moment lying is accepted instead of condemned, it has to be required. Once it comes to be viewed as just another way to win, then in refusing to lie for the party, the company, or the cause, a person is not doing his or her job. Dishonoring truth is perversely regarded as a kind of duty.

I completely agree with Professor Budziszewski.  We could spend a lot of time debating the structure of politics and the legal system, and the merits of the two-party system and the attorney/client privilege, but both seem powerless in the face of lying politicians and litigants.  I’m not saying all the politicians and litigants and their attorneys out there are liars, but as it grows popular, it will become as Professor Budziszewski said: a duty to lie.  Perhaps it has already gotten there in the political world, which would explain why I am so sick of watching politicians speak on television.