Nothing to Do with the Truth
Lawyers' Spin Undercuts Public Faith in System
No single raindrop believes it is to blame for the flood.
- Old Saying
by Amitai Etzioni
As eminent attorney Floyd Abrams once wrote, it should not surprise us when lawyers make claims that have nothing to do with the truth. And as Alan M Dershowitz wrote through his legal maven in his novel, The Advocate's Devil, "in this game, there's only one bottom line - winning." For these reasons, we need to fashion reforms to rein in these fast-talking lawyers who are increasingly playing verbal acrobatics with the truth, if we are to ensure public faith in our system of justice.
I'm being too cynical, you say?
Well, to test whether my view of lawyering is indeed too mistrustful, I posed a hypothetical example (based on an actual case) to several legal authorities: Eight women charge that a physician sexually molested them while he had them connected to a wire that he claimed would endanger them if they moved. The defense argues that the women fabricated the whole thing, conspiring to extort money from the physician. No evidence of any kind is presented to support this claim. Assume, I suggested, the lawyer made up the whole defense; should we allow this? All seven lawyers and legal scholars I approached said lawyers' only obligations are to their clients.
For example, George E Bushnell Jr, former president of the American Bar Association, put it starkly: "While your report of the sexual-molestation defense on its face is irresponsible, I cannot agree that the rights of the defendant should in any way be changed or modified."
You could argue that lawyers have not only a right but also a duty to do everything they can for their clients. You could also argue that lawyers are already bound by the ethical codes of their profession. And you'd be correct to a degree. For example, if a lawyer knows that his client is about to commit perjury, the lawyer is supposed to stop the client or to alert the court. Also, a lawyer cannot legally enter a plea of not guilty for a client he knows has committed the crime. However, many lawyers circumvent these rules by what is known as "The Lecture." When a lawyer first meets his clients, it's not uncommon for him to warn them not to tell him more than he needs to know.
What's the answer, then?
Abrams believes we should ask lawyers to show less willingness to make certain arguments (for example, those that could not be true) and greater willingness to view themselves as part of a system of law rather than as alter egos of their clients. How about, for instance, prohibiting one lawyer from challenging the other side's veracity when the lawyer knows the other side is telling the truth? Or making it at least an ethical offense when a lawyer makes up a theory, for which there is no shred of evidence, to undermine the prosecution?
In one meeting of legal scholars and lawyers, I found few takers for such reforms. Lawyers are paid to help their clients; they have little motivation and fewer incentives to pay mind to other considerations, I was repeatedly told. US District Court Judge Paul L Friedman criticised the American Bar Association (ABA) for wanting lawyers to abide not only by their clients' decisions about the objectives of litigation, but also about the means. US Appeals Court Judge S Jay Plager reported that during an educational conference sponsored by the ABA, lawyers were encouraged to ignore the judge's instructions regarding what they must disclose to a jury.
But those assembled had a constructive idea: they argued that judges could more aggressively challenge a defense lawyer or district attorney when they suspect them of making up something. This action, the group thought, would deter lawyers on both sides from similar behaviour in the future. Even if judges merely noted in their verdicts when a lawyer crossed the line, we would be on the way to some tightening of the rules of the game. True, public interest in justice should not take precedence over a defendant's rights. But it should not be wantonly ignored, either.
Amitai Etzioni, most recently the author of The Monochrome Society. is a member of USA Today's board of contributors.
Source: USA Today Tuesday 24 July 2001
Should a lawyer's primary allegiance be to his client? Or to the truth? What do you think? Should a lawyer ever knowingly allow his client to lie? To help him lie? To help him avoid telling unpleasant truths?
Here's Why: A Sociologist Offers an Anatomy of Explanations
by Malcolm Gladwell
Little Timothy is playing with his older brother Geoffrey, when he comes running to his mother. "Mommy, Mommy," he starts in. "I was playing with my truck, and then Geoffrey came and he said it was his turn to play with the truck even though it’s my truck and then he pushed me."
"Timothy!" his mother says, silencing him. "Don’t be a tattletale."
Timothy has heard that phrase - "Don’t be a tattletale" - countless times, and it always stops him short. He has offered his mother an eyewitness account of a crime. His mother, furthermore, in no way disputes the truth of his story. Yet what does she do? She rejects it in favour of a simplistic social formula: Don’t be a tattletale. It makes no sense. Timothy’s mother would never use such a formula to trump a story if she were talking to his father. On the contrary, his mother and father tattle to each other about Geoffrey all the time. And, if Timothy were to tattle on Geoffrey to his best friend, Bruce, Bruce wouldn’t reject the story in favour of a formula, either. Narratives are the basis of Timothy’s friendship with Bruce. They explain not just effects but causes. They matter - except in this instance, of a story told by Timothy to Mommy about Geoffrey, in which Mommy is suddenly indifferent to stories altogether. What is this don’t-be-a-tattletale business about?
In Why? (Princeton; $24.95), the Columbia University scholar Charles Tilly sets out to make sense of our reasons for giving reasons. In the tradition of the legendary sociologist Erving Goffman, Tilly seeks to decode the structure of everyday social interaction, and the result is a book that forces readers to reëxamine everything from the way they talk to their children to the way they argue about politics. In Tilly’s view, we rely on 4 general categories of reasons.
Tilly argues that we make two common errors when it comes to understanding reasons. The first is to assume that some kinds of reasons are always better than others - that there is a hierarchy of reasons, with conventions (the least sophisticated) at the bottom and technical accounts at the top. That’s wrong, Tilly says: each type of reason has its own role. Tilly’s second point flows from the first, and it’s that the reasons people give aren’t a function of their character - that is, there aren’t people who always favour technical accounts and people who always favour stories. Rather, reasons arise out of situations and roles. Imagine, he says, the following possible responses to one person’s knocking some books off the desk of another:
The lesson is not that the kind of person who uses reason No. 1 or No. 2 is polite and the kind of person who uses reason No. 4 or No. 5 is a jerk. The point is that any of us might use any of those 5 reasons depending on our relation to the person whose books we knocked over. Reason-giving, Tilly says, reflects, establishes, repairs, and negotiates relationships. The husband who uses a story to explain his unhappiness to his wife - "Ever since I got my new job, I feel like I’ve just been so busy that I haven’t had time for us" - is attempting to salvage the relationship. But when he wants out of the marriage, he’ll say, "It’s not you - it’s me." He switches to a convention. As his wife realises, it’s not the content of what he has said that matters. It’s his shift from the kind of reason-giving that signals commitment to the kind that signals disengagement. Marriages thrive on stories. They die on conventions.
Consider the orgy of reason-giving that followed Vice-President Dick Cheney’s quail-hunting accident involving his friend Harry Whittington. Allies of the VP insisted that the media were making way too much of it. "Accidents happen," they said, relying on a convention. Cheney, in a subsequent interview, looked penitently into the camera and said, "The image of him falling is something I’ll never be able to get out of my mind. I fired, and there’s Harry falling. And it was, I’d have to say, one of the worst days of my life." Cheney told a story. Some of Cheney’s critics, meanwhile, focussed on whether he conformed to legal and ethical standards. Did he have a valid license? Was he too slow to notify the White House? They were interested in codes. Then came the response of hunting experts. They retold the narrative of Cheney’s accident, using their specialised knowledge of hunting procedure. The Cheney party had 3 guns, and on a quail shoot, some of them said, you should never have more than 2. Why did Whittington retrieve the downed bird? A dog should have done that. Had Cheney’s shotgun been aimed more than 30° from the ground, as it should have been? And what were they doing in the bush at 5:30 in the afternoon, when the light isn’t nearly good enough for safe hunting? The experts gave a technical account.
Here are 4 kinds of reasons, all relational in nature. If you like Cheney and are eager to relieve him of responsibility, you want the disengagement offered by a convention. For a beleaguered public relations agent, the first line of defense in any burgeoning scandal is, inevitably, "There is no story here." When, in Cheney’s case, this failed, the VP had to convey his concern and regret while not admitting that he had done anything procedurally wrong. Only a story can accomplish that. Anything else - to shrug and say that accidents happen, for instance - would have been perceived as unpardonably callous. Cheney’s critics, for their part, wanted the finality and precision of a code: he acted improperly. And hunting experts wanted to display their authority and educate the public about how to hunt safely, so they retold the story of Cheney’s accident with the benefit of their specialised knowledge.
Effective reason-giving, then, involves matching the kind of reason we give to the particular role that we happen to be playing at the time a reason is necessary. The fact that Timothy’s mother accepts tattling from his father but rejects it from Timothy is not evidence of capriciousness; it just means that a husband’s relationship to his wife gives him access to a reason-giving category that a son’s role does not. The lesson "Don’t be a tattletale" - which may well be one of the hardest childhood lessons to learn - is that in the adult world it is sometimes more important to be appropriate than it is to be truthful.
Two years ago, a young man named Anthony mugged a woman named Anne on a London street. Anthony was caught and convicted, and a few days before he was sentenced he sat down with Anne for a face-to-face meeting, as an exercise in what is known as "restorative justice." The meeting was videotaped by a criminal-justice research group, and to watch the video is to get an even deeper sense of the usefulness of Tilly’s thinking.
"We’re going to talk about what’s happened," the policeman moderating the meeting begins. "Who’s been affected, and how they’ve been affected, and see what we can do to make things better."
Anthony starts. He has a shaved head, a tattoo on his neck, and multiple piercings in his eyebrows and ears. Beside him is his partner, Christy, holding their baby boy. "What happened is I had a bad week. Been out of work for a couple of weeks. Had my kneecap broken ... I only had my dad in this country, whom I don’t get on with. We had no gas in our flat. Me and Christy were arguing all that morning. The baby had been screaming. We were hungry." His story comes out painfully and haltingly. "It was a bit too much. All my friends I asked to loan me a couple of pounds. They just couldn’t afford to give it to me ... I don’t know what got into me. I just reached over and took your bag. And I’m really sorry for it. And if there is anything I can do to make up for it, I’m willing to do it. I know you probably don’t want me anywhere near you."
Anne has been listening closely, her husband, Terry, next to her. Now she tells her side of the story. She heard a sound like male laughter. She turned, and felt her purse being pulled away. She saw a man pulling up his hood. She ran after him, feeling like a "complete idiot." In the struggle over her bag, her arm was injured. She is a journalist and has since had difficulty typing. "The mugging was very small," she says. "But the effect is not going away as fast as I expected ... It makes life one notch less bearable."
It was Christy’s turn. She got the call at home. She didn’t know exactly what had happened. She took the baby and walked to the police station, angry and frightened. "We got ourselves in a situation where we were relying on the state, and we just can’t live off the money," Christy says. "And that’s not your problem." She starts to cry. "He’s not a drug addict," she continues, looking at her husband. Anthony takes the baby from her and holds him. "If we go to court on Monday, and he does get 3 years for what he’s done, or 6 years, that’s his problem. He did it. And he’s got to pay for what he’s done. I wake up and hear him cry" - she looks at the baby - "and it kills me. I’m in a situation where I can’t do anything to make this better ... I just want you to know. The first thing he said to me when he walked in was ‘I apologised.’ And I said, ‘That makes what difference?’"
Watching the conference is a strange experience, because it is utterly foreign to the criminal process of which it is ostensibly a part. There is none of the oppressive legalese of the courtroom. Nothing is "alleged"; there are no "perpetrators." The formal back-and-forth between questioner and answerer, the emotionally protective structure of courtroom procedure, is absent. Anne and Terry sit on comfortable chairs facing Christy and Anthony. They have a conversation, not a confrontation. They are telling stories, in Tilly’s sense of that word: repairing their relationship by crafting a cause-and-effect account of what happened on the street.
Why is such storytelling, in the wake of a crime, so important? Because, Tilly would argue, some social situations don’t lend themselves to the easy reconciliation of reason and role. In Jonathan Franzen’s novel The Corrections, for example, one of the characters, Gary, is in the midst of a frosty conversation with his wife, Caroline. Gary had the sense, Franzen writes, "that Caroline was on the verge of accusing him of being ‘depressed,’ and he was afraid that if the idea that he was depressed gained currency, he would forfeit his right to his opinions ... Every word he spoke would become a symptom of disease; he would never again win an argument." Gary was afraid, in other words, that a technical account of his behaviour - the explanation that he was clinically depressed - would trump his efforts to use the stories and conventions that permitted him to be human. But what was his wife to do? She wanted him to change.
When we say that the parties in a conflict are "talking past each other," this is what we mean: that both sides have a legitimate attachment to mutually exclusive reasons. Proponents of abortion often rely on a convention (choice) and a technical account (concerning the viability of a fœtus in the first trimester). Opponents of abortion turn the fate of each individual fœtus into a story: a life created and then abruptly terminated. Is it any surprise that the issue has proved to be so intractable? If you believe that stories are the most appropriate form of reason-giving, then those who use conventions and technical accounts will seem morally indifferent - regardless of whether you agree with them. And, if you believe that a problem is best adjudicated through conventions or technical accounts, it is hard not to look upon storytellers as sensationalistic and intellectually unserious. By Tilly’s logic, abortion proponents who want to engage their critics will have to become better storytellers - and that, according to the relational principles of such reason-giving, may require them to acknowledge an emotional connection between a mother and a fœtus. (Ironically, many of the same members of the religious right who have so emphatically demonstrated the emotional superiority of stories when it comes to abortion insist, when it comes to Genesis, on a reading of the Bible as a technical account. Thus do creationists, in the service of reason-giving exigency, force the holy scripture to do double duty as a high-school biology textbook.)
Tilly argues that these conflicts are endemic to the legal system. Laws are established in opposition to stories. In a criminal trial, we take a complicated narrative of cause and effect and match it to a simple, impersonal code: 1st-degree murder, or 2nd-degree murder, or manslaughter. The impersonality of codes is what makes the law fair. But it is also what can make the legal system so painful for victims, who find no room for their voices and their anger and their experiences. Codes punish, but they cannot heal.
So what do you do? You put Anne and her husband in a room with Anthony and Christy and their baby boy and you let them talk. In a series of such experiments, conducted in Britain and Australia by the criminologists Lawrence Sherman and Heather Strang, restorative-justice programs have shown encouraging results in reducing recidivism rates among offenders and psychological trauma among victims. If you view the tape of the Anthony-Anne exchange, it’s not hard to see why. Sherman said that when the Lord Chief Justice of England and Wales watched it at home one night he wept.
"If there is anything I can do, please say it," Anthony says.
"I think most of what you can do is between the two of you, actually," Anne says to Anthony and Christy. "I think if you can put your lives back together again, then that’s what needs to be done."
The moderator tells them all to take a break and help themselves to "Metropolitan Police tea and coffee and chocolate biscuits." Anne asks Christy how old the baby is, and where they are living. It turns out that their apartment has been condemned. Terry stands up and offers the baby a chocolate biscuit, and the adults experience the kind of moment that adults have in the company of babies, where nothing matters except the child in front of them.
"He’s a good baby," Christy says. A convention. One kind of reason is never really enough.
Source: newyorker.com 3 April 2006
My problem with this article concerns Timothy, the little boy having trouble with Geoffrey (presumably his brother). He comes to his mother for much the same reason his father might. Why, then, is he not entitled to her counsel? She could explain about conflict, help him to see that Geoffrey is younger, or is cutting a tooth and doesn't feel well, or whatever. She could help Timothy understand and accept the situation rather than merely brushing him off - letting him know that his petty problems don't concern her. But no - her lapse is excused. Why?
Self-trust is the essence of heroism.
- Ralph Waldo Emerson
Those you trust the most can steal the most.
- Lawrence Lief
Trust is an evocative word. My unabridged dictionary lists 23 definitions for the word "trust" including:
Then we come to the definition that actually applies:
Curiously, the next definitions are rather ominous:
In conclusion, in the "Synonyms" section, I read:
Trust, Assurance, Confidence imply feelings of security.
Trust implies instinctive unquestioning belief in and reliance upon something...
Confidence implies conscious trust because of good reasons, definite evidence, or past experience...
Assurance implies absolute confidence and certainty...
Remember, in the immortal words of Perpetual Trust: Trust Is Forever (because it may take that long to get your investment back!)
A common thread runs through these contrasts. The way that business works depends on how much we trust each other. In Britain, most children are less free outside the home than previous generations. Parents are more afraid that bad people will harm them if they travel to and from school, play outside or run errands on their own. Some people say dangers are exaggerated but that hardly matters. We have in this respect lost trust and our lives are impoverished.
Trust, or lack of it, has equally dramatic economic effects. A study by economists Paul Zak and Stephen Knack in the Economic Journal finds that trust is closely related to a country's wealth and has a crucial impact on growth prospects. Variations are extraordinary. Among those asked to choose between the propositions that "most people can be trusted" or that "you cannot be too careful in dealing with people", only 5.5% of Peruvians showed trust in their fellows against 61% in Norway and not much less in Sweden, Finland and Denmark.
Britain scored a respectable 44% and the United States a more modest 35%, so trust is clearly not the only factor. For poorer countries, however, the economists found it was more critical. If the expressed degree of mutual trust in a country is below 30%, as in much of South America and Africa, it might be because of a self-imposed poverty trap whereby living standards are unlikely to improve.
Trust comes in two forms. Positive goodwill between people stems from sharing values and having bonds based on mutual interests. Trust can also be based on deterrence: legal institutions that set rules and catch cheats effectively. In rich countries, we can afford to rely more on deterrence, albeit at vast economic cost. Crime squads and burglar alarms make good the lack of personal trust. In Russia, however, we can see what happens when rule by fear breaks down. Crime, corruption and lack of trust in financial institutions helped to wreck the economy and are preventing it from rebuilding through investment.
In poor countries, social cohesion appears to be the key to trust. A polyglot country can work well if people share common values, as immigrants to the US and different groups in Singapore were encouraged to do. But having two or three groups that distrust each other as in the Balkans or parts of Africa, is fatal. Speaking the same language helps.
Fairness appears to be even more important. Trust is lowest in places where there are huge gulfs between rich and poor. The World Bank and private investors should therefore put more emphasis on democracy as a condition for outside help. Fighting corruption and allowing everyone a fair chance are, in the long run, prerequisites for successful investment in any country. By building trust and including seemingly inefficient measures such as imposing minimum wages or keeping universal pensions are more likely to improve economic prospects.
Trust is also at the heart of arguments over immigration and racial discrimination. Mass immigrants have always been distrusted and disadvantaged as a result. As they join the local culture, the distrust evaporates. Discrimination against immigrant groups reinforces and perpetuates distrust, at enormous economic cost. But fear of immigration can be rational if immigrants import a culture based on lack of trust. So to be proud of your country's culture, and to include immigrants in it, is the best economic policy. - The Times
Source: The Dominion Wednesday 9 May 2001
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