I am a fan of the American court system. There is no natural law requiring people to resolve their differences by asking third parties to represent them and advocate on their behalf in front of impartial decision-makers. The folks in classical Athens and Rome thought it was a good idea, the Europeans rediscovered the practice in the Middle Ages, and the adversarial system of law has been consistently practiced by England, and then America, ever since.
Since the classical time, there have always been restrictions on lawyers intended to keep them honest. Most of those “restrictions” have amounted to nothing more than an oath sworn by lawyers to the government, but, on the whole, lawyers really do tend to be honest in their practice. In the bulk of my cases, particularly those “routine” cases involving reasonable insurance coverage (like automobile accidents and medical malpractice), neither I nor my client believe that the opposing counsel is intentionally lying during the course of the case.
Sure, opposing counsel and I may have strong differences of opinion about the underlying facts, and even in those routine cases the defendants are frequently, shall we say, less than forthright in their telling of the facts and their production of relevant evidence, but I generally recognize — and a most of my clients understand and accept — that the lawyer for the other side has a job to do. They are there to zealously advocate on behalf of their client. They didn’t witness the event with their own eyes; they know only what their client is telling them, and, apart from knowingly participating in perjury or some other fraud on the court, opposing counsel has a duty to zealously advocate on their clients’ behalf, rightly or wrongly.
That’s appropriate. As I wrote before about The Limits of Advocacy, “there’s nothing wrong with advocating on behalf of your client an argument you believe ‘probably could not succeed.’ There are two sides to every story, and at least two interpretations of every legal issue. The United States uses an adversarial legal system precisely so that these stories and interpretations can be fully developed, critiqued, and challenged.” Zealous advocacy and loyalty are two fundamental tenants underlying our adversarial system of law. I expect nothing less of opposing counsel, and I deliver nothing less to my own clients.
The situation changes considerably when you start talking about complex litigation, particularly cases alleging fraud by a business (such as racketeering and False Claims Act cases, neither of which are insurable) and cases involving seven figures or more in potential damages. Those are the cases that bring in the big corporate defense firms with whole teams of lawyers that can rack up five-figure bills for the corporate client in the course of a typical workday. (I suppose it’s money well spent when you consider the guilty corporation’s alternative: owing up to their responsibility to pay for the serious damage they caused.)
Those complex business, commercial and class action cases also tend to get bogged down in the court system with endless motions, oral arguments, status conferences, and settlement conferences, anything and everything except for, of course, an actual jury trial, the last thing that a guilty corporation wants to go through. Justice delay is justice denied.
At trial, lawyers tend to stay within the normal bounds of zealous advocacy because fabrications and falsehoods tend to be exposed rapidly and brutally before the jury.
The same does not apply to all of those motions, oral arguments, status conferences, and settlement conferences. There is little space or time to rebut every misrepresentation made by a lawyer in a motion or at an oral argument, and virtually no way to prove that your opponent has lied in the middle of the conference before the judge. The situations simply do not present that type of opportunity. In a status conference, for example, the judge will be familiar with the case, but they will of course not have every document and every deposition memorized, and will have no way to evaluate the mere words of one lawyer versus another.
It is in many ways a license to lie. The lawyer will never get caught for a “misunderstanding” or “having a different view” or “being stupid” at one of these non-testimonial court events. The client will rarely be held responsible for their lawyer’s lie, even if it was made right in front of the client, who listened silently and nodded in approval. (“Though silence is not necessarily an admission, it is not a denial, either.” — Cicero.) I cannot cross-examine the opposing party to ask them if they agree with what their lawyer just said, and refer them to documents establishing the opposite.
At these pre-trial events, the only thing stopping a lawyer from looking the judge in the eye and telling him or her an outright lie is that oath the lawyer made to the government years ago.
Unfortunately, some lawyers out there apparently do not take that oath seriously.
In the last few weeks I have had a few occasions where, in the midst of one of these conferences during a complex case, opposing counsel has told the judge an outright lie. I do not mean “lie” in that their client has one version of the facts and my client has another version. I mean “lie” in that the opposing lawyer has said something to the judge that cannot be supported by any document or testimony in the case, a “lie” that I assure you would never be told to a jury under oath, since it would be swiftly disproven.
After each of those instances I was asked by my client, “can their lawyer just lie like that?”
As much as I would like to maintain the good reputation of the legal profession with the standard litany about the duty to be a “zealous advocate,” there’s nothing about being a zealous advocate which requires someone to lie, and I knew that these were, in fact, lies, pure and simple, lies designed to frustrate the judicial process by misleading the judge and thereby prolonging the case and introducing frivolous diversions from the real facts of the case.
How does this happen? Lawyers are not any more pure of heart than the population as a whole, but surely it cannot be that a substantial portion of lawyers have made the conscious decision to tell outright lies to judges. “In spite of everything, I still believe that people really are good at heart,” said Anne Frank, but maybe her experience proves the contrary. Some scholars think morality is hard-wired into the human brain, and I tend to agree. Few people see themselves as bad actors.
There must be some other explanation.
As I would tell my salespeople: If you want to be an expert deceiver, master the art of self-deception. People will believe you when they see that you yourself are deeply convinced. It sounds difficult to do, but in fact it’s easy—we are already experts at lying to ourselves. We believe just what we want to believe. And the customer will help in this process, because she or he wants the diamond—where else can I get such a good deal on such a high-quality stone?—to be of a certain size and quality. At the same time, he or she does not want to pay the price that the actual diamond, were it what you claimed it to be, would cost. The transaction is a collaboration of lies and self-deceptions.
Here’s a quick lesson in selling. You never know when it might come in handy. … Use the several kinds of lies Aristotle identified in Nicomachean Ethics: A good mixture of subtle flattery, understatement, humorous boastfulness, playful storytelling, and gentle irony will establish that “you’re one of us, and I’m one of you.” We are alike, we are friends, we can trust each other.
The problem is, once lying to your customer as a way of doing business becomes habitual, it reaches into other areas of your business, and then into your personal life.
“There is nothing so ridiculous that some philosopher has not said it,” said Cicero, but the lying philosopher (he’s known these days as “The Lie Guy”) is right.
Recall those duties of zealous advocacy and loyalty. Sure, there are competing duties duties of merit, candor and fairness, but meeting those duties does not pay the bills. Loyalty and zealous advocacy pay the bills, and if lawyers really invest themselves emotionally, financially, and philosophically in their clients’ clause, then of course some lawyers will not even see the line drawn in the sand, the liar line, when they cross it.
So that is my answer to the clients wondering where the legal system has gone wrong: no, the opposing lawyer cannot just lie like that, but they might not even realize they’re doing it — before they tried to deceive you, they deceived themselves.