Ran across this little nugget doing legal research on a case.  If only it were completely true:

The argument also assumes, quite wrongly, that lawyers make all the difference in outcomes, as if the merits of a case or the interests of justice didn’t count for much. (In reality it should be the other way around to the degree that it is true at all.) All judges regularly see cases where the better lawyer rightfully lost because he or she should have lost, regardless of skill. (And that is by whatever criteria you choose to measure relative legal skill, e.g., perceptivity, knowledge, organization, or ever plain diligence.) In any sane system of justice, the merits, rather than the skill of lawyers, should control the ultimate disposition.

Chen v. County of Orange, 96 Cal. App. 4th 926, 948 (2002).

It is absolutely true that the merits should control the ultimate disposition, but in my career I’ve seen a lot of improper results due to lawyers’ skills (or lack thereof).


Diogenes of Synope

Diogenes of Synope was a funny Greek philosopher who used to wander the streets with a lantern in the daylight “in search of an honest man.”  He was something of a hippie, as he spurned riches, reputation, and even hygiene.  He also questioned patriotism and preferred to call himself a citizen of the world.

As I grow older, I find myself thinking more and more like Diogenes, at least insofar as I believe I could carry on a similar search for an honest man and never find one.  Honesty is more than telling the truth.  Honesty is the willingness to call a spade a spade, even when the full truth makes one look weak.

Lawyers might have a problem with this because they are paid to put the client’s “best case” before the court.  They are paid to keep some bad information secret through the attorney-client privilege, to ignore inconvenient facts, and to make the other side’s “best case” look preposterous, even if it is the more likely truth.  No doubt Diogenes would have a field day with lawyers.

Of course, lawyers do not necessarily handle the truth in such ways when clients, judges, and juries are not around.  We lawyers have also usually been exposed at one point or another to the limitations of our knowledge.  As young lawyers researching a legal question, we learn that even though we might discover a law on the books that apparently resolves our legal question, there might be another law out there stating that the just-discovered statute does not apply in certain situations.  Since it is practically impossible to read every law out there to prove a negative (especially on the client’s dime), the lawyer must act with some degree of faith in his/her mentors, practice guide books, and even gut instinct.  That degree of uncertainty should keep the lawyer’s attitude in check.

When dealing with coworkers and clients, however, lawyers must appear confident in spite of the fact that they might be wrong (even embarrassingly so).  I can’t help but wonder if this bravado comes from society or if lawyers helped to contribute this approach to society, but it seems that virtually everyone in public life wants to focus on his or her argument, ignore or suppress all information counter to that argument, discredit all those who might question that argument, and reframe any opponent’s argument in a weaker way so that it is easier to overcome.  This is probably not the best way for a curious listener to arrive at the truth—listening to multiple myopic, self-serving viewpoints and trying to sort between them.

The thesis/antithesis model of reasoning, where one honestly and readily admits the most powerful arguments opposing one’s argument during discourse, is far superior for everyone’s sake if one is to hope that the truth triumphs even to one’s own detriment.  Sadly, we are usually not honest enough to hope that the truth prevails even though it crushes us.  We could join Diogenes’ search, knowing full well that no one is brave enough or righteous enough to always admit the truth and expose his own frailty.

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.