Published By: Maxwell S. Kennerly, Esquire

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The New Yorker recently reviewed Jay-Z’s book explaining his discography (“Decoded”) alongside “The Anthology of Rap,” a nine-hundred-page compendium published by two English professors who argue that rap should be considered a form of modern poetry.

I won’t touch that argument; poets and English professors are notoriously violent.

But one part of the article bears particular relevance to advocates:

Too often, hip-hop’s embrace of crime narratives has been portrayed as a flaw or a mistake, a regrettable detour from the overtly ideological rhymes of groups like Public Enemy. But in Jay-Z’s view Public Enemy is an anomaly. “You rarely become Chuck D when you’re listening to Public Enemy,” he writes. “It’s more like watching a really, really lively speech.” By contrast, his tales of hustling were generous, because they made it easy for fans to imagine that they were part of the action. “I don’t think any listeners think I’m threatening them,” he writes. “I think they’re singing along with me, threatening someone else. They’re thinking, Yeah, I’m coming for you. And they might apply it to anything, to taking their next math test or straightening out that chick talking outta pocket in the next cubicle.

There’s a crucial distinction between making a compelling argument and truly conveying to a listener the emotions you feel. Legal advocacy is nominally only about the former; there’s no shortage of cases and commentators complaining about “inflaming the jury’s passions” or the like. (Don’t believe everything you read — defense lawyers try to “inflame the jury’s passions” just as often as plaintiff’s lawyers.)

But in practice legal advocacy is about both. A “really lively speech” isn’t as persuasive as a “really lively speech” that also helps listeners “imagine that they were part of action” — and thus helps listeners feel, and not just think, the same unwavering conviction and rightness that the lawyer feels about their client’s cause.

As much as we would all like to draft every brief, and prepare every argument, with the head and the heart, with overwhelming reason and passion, most lawyers default to either the reasoned or the emotive perspective in their drafting and preparation. (In my humble opinion, the more complicated the law in the case is, the more likely it is that lawyers will focus primarily on their reasoning.) Then, to the extent possible, and largely as an afterthought, the lawyer will either nudge an emotive argument to fit with the reasoning or sprinkle the reasoning with emotion.

Yet, as I described in my part of The Jury Expert’s article on Don Keenan & David Ball’s “Reptile” book:

In the field of advocacy, little has changed since the publication of Aristotle’s Rhetoric two and a half millenia ago. “There are, then, these three means of effecting persuasion. The man who is to be in command of them must, it is clear, be able (1) to reason logically, (2) to understand human character and goodness in their various forms, and (3) to understand the emotions-that is, to name them and describe them, to know their causes and the way in which they are excited.” Whatever label we give our particular means of exciting the emotions — such as Ball and Keenan’s “reptile” or Allen, Schwartz and Wyzga’s “moral sense” — we must be careful not to miss the forest for the trees.

Advocacy is an art driven by language and emotion, not a science driven by data and testable hypotheses. Although it is always folly to attempt to manipulate a jury, advocates must remain open to all of the rhetorical tools available to them, and must adapt to the case at hand, sometimes by focusing on “the immediate danger of the kind of thing the defendant did,” sometimes by crafting a “persuasive narrative” through “attention choreography,” and sometimes by mixing those approaches.

 

As Aristotle described in the Poetics:

Poetry in general seems to have sprung from two causes, each of them lying deep in our nature. First, the instinct of imitation is implanted in man from childhood, one difference between him and other animals being that he is the most imitative of living creatures, and through imitation learns his earliest lessons; and no less universal is the pleasure felt in things imitated. We have evidence of this in the facts of experience. Objects which in themselves we view with pain, we delight to contemplate when reproduced with minute fidelity: such as the forms of the most ignoble animals and of dead bodies. The cause of this again is, that to learn gives the liveliest pleasure, not only to philosophers but to men in general; whose capacity, however, of learning is more limited. Thus the reason why men enjoy seeing a likeness is, that in contemplating it they find themselves learning or inferring, and saying perhaps, ‘Ah, that is he.’ For if you happen not to have seen the original, the pleasure will be due not to the imitation as such, but to the execution, the coloring, or some such other cause.

Imitation, then, is one instinct of our nature. Next, there is the instinct for ‘harmony’ and rhythm, meters being manifestly sections of rhythm. Persons, therefore, starting with this natural gift developed by degrees their special aptitudes, till their rude improvisations gave birth to Poetry.

Per Aristotle, advocates need first and foremost to “reason logically,” but should also “excite the emotions,” including by enabling “the instinct of imitation.”

Part Chuck D, part Jay-Z.

(But leave the “harmony and rhythm” to the poets and the rappers.)

When it comes to lawyer “war stories,” I agree with Philip Thomas: “The only stories about a lawyer that other lawyers want to hear are funny stories.” That said, cautionary tales have an important place in the law school curriculum: learning to “think like a lawyer” includes understanding how and why lawyers screw up. How else are law students supposed to learn just how dire the consequences can be?

 

Via the ABA Journal and the WSJ Law Blog, I saw a new law review article called, “This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students.” Beginning and ending with Aristotle quotes,* lawprof Abigail Patthoff tackles the question of how law professors should use cautionary tales to ensure students take home the right messages. By way of social science research into the “extended parallel process model,” Patthoff concludes, “the listeners who are most fearful following a fear appeal are also the listeners who are least likely to benefit from the fear appeal.” Thus, given law students’ pre-existing high anxiety levels, law professors should use fear-inducing cautionary tales “sparingly, carefully, and never without an accompanying efficacy message.”

 

Patthoff argues law professors should give fewer cautionary tales because “the combined weight of a semester’s worth of threats may, after a while, cause students’ perceptions of the threats to outweigh their perceptions of their ability to avoid those threats,” and that “law professors should attempt to soften both the perceived severity and perceived susceptibility aspect of cautionary tales” by using neutral, impersonal language. The point, she says, is to ensure law students won’t be so anxious and overwhelmed that they either develop an emotional coping mechanism (e.g., “this won’t happen to me”) or ignore the message completely.

 

Part of her argument is indisputable. Patthoff says that, when professors give a cautionary tale from the law, they shouldn’t just scare law students, but should “articulate the recommended response — even if that response seems obvious.” Indeed, a “cautionary tale” is of little use if it is given without any clear guidance to the student to help them avoid making the same mistake.

 

But there’s a problem: given the dearth of practical experience among law professors (a problem that is getting worse over time), what advice do they have? Patthoff gives several exemplar “cautionary tales,” but they all involve rudimentary issues that are easily addressed, like, as she notes, “consult the local rules and the Bluebook before filing a brief.” These are not the sort of serious problems that can cause true mischief in lawyer’s careers. A real cautionary tale would look more like this precedential Third Circuit opinion from last week, in which the court reinstated a fraud case against BASF and Cahill Gordon & Reindel alleging they “conspired to prevent thousands of asbestos-injury victims from obtaining fair tort recoveries for their injuries” by destroying and concealing evidence.  Continue Reading To Practice Law Is To Be Afraid

A little under a year ago, David Segal exasperated the legal blogging world with a New York Times article about how law schools fail to adequately train lawyers, leaving the hard work of an apprenticeship up to the law firms that employ recent law graduates. (My thoughts on the article, along with links to several others’ posts, are here.)

 

Not much has changed since then. There are still too many law schools, admitting too many students for too few jobs, and holding them for the unnecessary third year to collect an extra year of tuition. Earlier this week the Wall Street Journal again noted “some companies do object to paying [law firms] for inexperienced junior lawyers [to work on their matters], reasoning that the law firms should bear the cost of training first- and second-year associates.”

 

So it falls to the more experienced lawyers — sometimes themselves just a few years out from law school — to figure out how to train the new hires. Mark Herrmann’s “The Curmudgeon’s Guide to Practicing Law” does a good job of conveying to new lawyers the gestalt of how a lawyer manages himself or herself, and his columns still convey that same sense of professionalism, though they’re not quite as helpful for lawyers who are not in-house.

 

There’s an old saying, “fast, good, and cheap — pick two,” and it applies just the same to training newing lawyers, though with some modifications. “Cheap,” in my humble opinion, is a mixture of how much time you spent finding and vetting potential employees and how much you offered to pay them. The more effort you put into finding the right candidate and the more you pay, the better the candidate you’ll hire. Looking beyond grades to other factors like indications on their resume they have initiative or offering summer internships that give you a longer period to evaluate candidates will help you separate the truly-talented from the merely-good-at-grades. Money, too, is always an issue: sure, it’s a bad market for most law graduates, but not for all law graduates, and if you want to attract and to keep quality lawyers, you need to compensate them appropriately.

 

So the “cheap” part of the equation is resolved beforehand or resolved in the salary and bonuses you offer. That leaves fast versus good, and that’s where the problems start.  Continue Reading How To Train New Associate Lawyers

Today our lovely law firm building has had the signage and the flags out front changed to “The Sutton Club” as part of the filming of the movie Paranoia, starring Indiana Jones, Sirius Black, Mr. Holland, and That Guy Dating Miley Cyrus (Gale Hawthorne to all you young folks). I don’t know much about the movie (though now I’m obligated to see it), but the press release says:

In this high-stakes thriller, Adam Cassidy (Liam Hemsworth) is an ambitious junior technologist trying to climb the ranks of telecom giant Wyatt Corporation. But after one costly mistake, Adam is blackmailed by ruthless CEO Nicholas Wyatt (Gary Oldman) to turn corporate spy by going to work for the firm’s top competitor, which is run by Wyatt’s old mentor, Jock Goddard (Harrison Ford). Adam soon finds himself delivered into prepackaged success, living his fantasy life of old-world boardrooms, private clubs, exotic cars, and all the spoils of Manhattan bachelorhood. However, behind the scenes, he is merely a pawn in Wyatt’s power play, and must search for a way out from under his boss, who will stop at nothing, even murder, to gain a multi-billion dollar advantage.

Applying my impressive analytical reasoning skills, I believe that our dear “Sutton Club” is one of the aforementioned “private clubs.”

Given the context, let’s talk a moment about success. Do you know what the President of the United States and a struggling novelist have in common? They both need to schmooze more, if we’re to believe Jane Mayer’s article in The New Yorker about Obama rankling donors and Michael Bourne’s article at The Millions about connecting with literary agents (“If it sounds like I’m saying, ‘It’s all about who you know,’ that’s because that is exactly what I’m saying.”).

Then, you need some luck, according to Felix Salmon, or differentiation, according to Malcolm Gladwell. Both Salmon and Gladwell agree that excellence is not really correlated with popularity.

I know, this isn’t exactly the meritocracy we’ve all been promised, and of course being a slouch isn’t going to help things — “excellence is not an act, but a habit,” said Aristotle —  but you should always bear in mind that schmoozing, connections, deliberate differentiation, and pure luck all play a huge role in success.

It is a truism among trial lawyers that compelling stories win cases.

 

Jim Perdue, a trial lawyer in Texas, wrote a trial advocacy book literally titled Winning with Stories: Using the Narrative to Persuade in Trials, Speeches & Lectures. I’ve written several times before about studying the methods of the great storytellers of our times and of classical times and how juries respond to the emotions conveyed by counsel.  The cynics might say we are doing nothing more than scheming to manipulate the emotions of jurors — like when a judge wrongly let defense lawyers drive an inadequate security / wrongful death case completely off the rails by discussing the Reptile book — but trial advocacy isn’t about misrepresenting yourself to jurors. It’s about choosing the most persuasive form of advocacy among many honest options.

 

Cases don’t come to us with summaries attached telling us which points to emphasize and how to construct the presentation of evidence at trial.  Perhaps worse, the structure of trial, particularly the way in which each witness testifies fully before the next witness is called and the requirement that a foundation be laid for all testimony, is almost designed to prevent the jury from understanding what really happened.  I’m fond of telling young lawyers and clients to recall the last great book, play, or movie they read or saw — perhaps Inception or Hamlet or Harry Potter — and then imagine if they had to figure out what happened based on nothing more than long, convoluted question and answer sessions with each of the participants.  Would you have any chance of understanding what happened if you sat as a juror on the the posthumous trial of Hamlet?

 

We all know a trial lawyer needs to turn that jumble of evidence into a story, but what story should that be?

 

To that end, let’s turn to John Reed, a rather unusual writer who, for example, successfully constructed a “new” Shakespeare play by mashing up lines from Hamlet, King Lear, Macbeth, Othello, Romeo & Juliet and Henry V into a cohesive narrative. In the latest Rumpus he rails against the commercialization of fictional narrative, with a couple interesting observations for those of us outside of literature:

 

To this day, sin, suffering, redemption is the primary Western story. In movies, in television, in cross-cultural memoirs (which must accept the Western story to be culturally significant) and in fiction. Harvey Pekar, in his recent collection, Huntington, West Virginia on the Fly puts a percentage to equation: 99% of what we encounter is establishment narrative.

In West Virginia and the body of his work, Pekar understands that a story can be told of any of us, without forced structures or prerequisites—because every man, every woman’s life, is an allegory of our times, and in the broader sense, existence itself. …

The distinction—from life or from edict—happens to be the customary distinction of the literary v. the non-literary work. The logic:

—In literary works, the structure is derived from the content.

—In non-literary works, the content is derived from the structure.

…

Max Brand (Frederick Schiller Faust), a prolific pulp western writer of the 1920s and 30s, maintained that there were two types of stories: coming home, or leaving home. The assertion neatly correlates to the classical definition of comedy and tragedy, as well as a content-first v. structure-first division of the arts. The coming home story (usually comedic or “feel good”): the cowboy accepts and/or is accepted by society. The leaving home story (usually tragic or “dark”): the cowboy rejects and/or is rejected by society. Structure-first stories, i.e. coming home, tend to be about assimilation, while content-first stories, i.e. leaving home, tend toward dissent.

 

Deep stuff, perhaps a bit too deep for me — “Academia, outmoded and provincial, peddles geniuses and nihilists, ignores contemporary writers of far more immediacy, relevancy, talent and accomplishment” — considering that I cited Harry Potter earlier in this post, but there’s a lot we can learn from examining the way in which narratives are formed, particularly this distinction between whether structure drives content or vice versa, and the idea that all stories fall into a couple predictable forms.

 

One obvious analogy to draw is that the “evidence” is the “content” and so it should drive the “structure” of the presentation at trial — but the evidence is a jumbled mess of known facts, known unknowns, and unknown unknowns. The lawyer has to create some semblance of structure to even begin arranging the evidence for presentation at trial. The core narrative of sin, suffering, and redemption fits much of our work, with the negligence as the sin, the damages as the suffering, and the plaintiff’s lawyer asking the jury to redeem the tragic situation, but it doesn’t get you very far into developing a real narrative for your case.

 

And then there’s a potentially bigger problem.

Continue Reading Trial Lawyers As Storytellers, The Narratives Versus The Numbers

As a lawyer, you’re either a conversationalist, a counselor, a writer, a storyteller, or some mixture of them all. I spend a fair amount of my time reading or writing pleadings and briefs, a fair amount of time either preparing a story (through discovery and depositions) or telling a story (at a court hearing or at trial), and the remainder of my time counseling clients.

Consequently, I’m a sucker for any advice from writers and storytellers, and have previously referenced the methods of writers like David Mitchell and Philip K. Dick, as well as storytellers like Jay-Z and David Mamet. (I’d be remiss in mentioning David Mamet in an article about writing and advocacy without also also referencing Christopher Hitchens’ animadversion against Mamet’s book.)

So naturally I was drawn to NPR’s new story on Poet Laureate Philip Levine:

Levine’s work is most famous for its urban perspective, and its depiction of blue-collar life in Detroit. But while he was working in the factories, he found nothing poetic about them.

“I found the places hateful.” His job at Chevrolet Gear and Axle was hard, he says, “and the work was exhausting.” …

Why was it so hard? Levine quotes another poet laureate, William Wordsworth: “‘Poetry is made up of emotion recollected in tranquility.’ I didn’t have any tranquility,” Levine says. “I was full of anger. I was very aware of the fact that I was being exploited and the people around me were being exploited. There was a mythology about us: We were stupid and lazy and we deserved what we were doing, our dumb work.”

The whole article is worth a read, in part for his stories about that blue collar work, which remind me of Studs Terkel.

Levine adds: Continue Reading Poet Laureate Philip Levine On Writing “Where The Poem Leads”

There are nearly 900 articles posted on this blog, on subjects ranging from John Ashcroft to Mark Zuckerberg. Some have been discussed by The New York Times, The Atlantic, or Vanity Fair. Some have been referenced by the Wall Street Journal Law Blog or the Harvard Law School Forum on Corporate Governance, some have prompted…

I’ve written before about the lessons for lawyers of Jay-Z and Aristotle and what Atticus Finch really teaches about persuading a jury. I firmly believe that trial lawyers can learn as much from the great communicators — the entertainers, the philosophers, the writers — as they can from other lawyers and advocates. We may be advocates, but our audience is rarely made of advocates.

First, a recap of the basics of trial advocacy. For plaintiff’s lawyers, Rick Friedman and Patrick Malone wrote in Rules of the Road that the three greatest problems that plaintiffs faced in proving liability were complexity, confusion, and ambiguity. Reptile by Don Keenan and David Ball (which I wrote about here) similarly guides plaintiff’s lawyers in personal injury cases to focus on simple issues relating to the danger of the defendant’s conduct, like the likelihood that the harm could occur and the degree of harm that was possible from the negligent or reckless behavior.

One could be forgiven for thinking such advice is particular to plaintiffs, who bear the burden of proof and the burden of persuasion. But the same is often told to criminal defense lawyers, even in the context of their bread and butter at trial, cross-examination. Irving Younger set the gold standard with his Ten Commandments of Cross-Examination:

1. Be brief
2. Use plain words
3. Ask only leading questions
4. Be prepared
5. Listen
6. Don’t get into a quarrel
7. Avoid repetition
8. Disallow witness explanations
9. Limit questioning
10. Save the main point for the summation

The themes are quite obvious. Simplicity. Clarity. Brevity.

And so it came to be that Casey Anthony’s lead defense lawyer, Jose Baez, had scorn heaped upon him. As the “legal analysts” said, he “seems kind of stuck in their train of thought and their plan without showing a lot of flexibility given changes in circumstances,” that he was “running in quicksand,” and that his inconsistent theme of the case — going from arguing that Caylee’s death was an accidental drowning in his opening statement to arguing there was no proof how Caylee died in his closing argument — “flies in the face of common sense.”

Maybe so, but Baez wasn’t there to prove anything. He was just there to cast doubt on the prosecution’s case.

Which brings us to an essay titled, “Philip K. Dick and the Pleasures of Unquotable Prose:”

It’s just that there are spots (sometimes lengthy) of distractingly awkward description, or silly interior monologue, or creaky exposition. As a genre writer who produced over 44 novels and something like 121 short stories, Dick’s prose style seems to disappoint, at least a little bit, his literary-minded devotees, myself included, of course. What are we to do? …

[T]here are moments in Dick’s best novels that seem like unrevised first draft material, but there’s something essential about the inconsistency of Dick’s writing. It is important, I think, that Dick’s novels are not particularly quotable. … So maybe the way to grasp the intricate philosophical craziness of one of Dick’s books is to think maximally, in terms of plot structure and narrative scheme. Forget looking for the pithy quote, which is a sham. Embrace the plot summary, which is real work.

Paradoxically, plot summary can be exactly the opposite of what we usually assume it is: reductive. What’s really reductive is excerpting a writer’s nice sentence on a blog. Thinking in terms of plot summary when praising a novel by Philip K. Dick does something else.

So it can be with a trial. It does not seem that there was any particular moment of Casey Andrews’ defense that was notable, quotable, or technically impressive. Not one moment of it will look good on television.

Maybe Jose Baez simply got lucky; facts win cases, not lawyers. The Casey Anthony case was difficult to prosecute from the start, given the minimal usable forensic evidence and with no direct eyewitness testimony. It’s quite possible that, with merely competent representation, there would be reasonable doubt as to her guilt. That said, the prosecution was greatly aided by two factors: Casey Anthony was a proven liar about relevant issues, even easily verifiable issues like her place of employment, and the concealed death of a child is, on its own, sufficient circumstantial evidence to suggest culpability for murder.

Perhaps we should look at the defense “maximally, in terms of plot structure and narrative scheme,” like a Philip K. Dick novel. Jose Baez and Cheney Mason didn’t have the facts they needed for Irving Younger’s brevity, or to avoid quarrels, or to prevent explanation, or to limit questioning. They had to fight on every front, get every issue out, no matter how ugly the performance, no matter disappointing the prose.

And it worked. Contrary to what a lot of lawyers are saying on blogs and in columns (perhaps most notably, Alan Dershowitz), Casey Anthony’s acquittal is not an example of “the system working.” The system “works” when the guilty are convicted and the innocent are acquitted. Here, a person most people — including the jurors who have spoken with the media — believe is likely guilty of murder is now walking free. That’s not “the system working.”

Instead, what happened here was a preferable error. Our society has generally agreed that it is better for someone like Casey Anthony to go free than for an entirely innocent mother to be wrongly convicted of murdering their child. Thus, by use of the “beyond a reasonable doubt” standard, we set up our criminal prosecution system to prefer false negatives (wrongfully acquitted) to false positives (wrongfully convicted).

I happen to agree with that reasoning, and I’m glad the jury believes it appropriately applied the reasonable doubt standard but let’s not kid ourselves: it’s a failure, just not the worst type of failure.

Jose Baez and Cheney Mason didn’t have any sort of plausible alternative version of events they could present and support with testimony and evidence; their only hope was to create an acceptable error in the system. Sounds almost like the plot of a Philip K. Dick novel.

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.

 

Clancy Martin, a philosopher turned liar turned philosopher again, explains:

 

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.

Plato and AristotleModern society has two means by which it assesses truth or falsity: science and law. Just as Einstein recognized "there is no logical path to the [elemental laws of the universe]; only intuition, resting on sympathetic understanding of experience, can reach them," Holmes taught "the life of the law has not been logic; it has been experience."

Scientists and lawyers have learned to value pragmatic experimentation over logical deduction; call it the victory of Aristotle over Plato. (Scientists and lawyers also share a love of semicolons.)

But they don’t always reach the same conclusions, particularly not on matters of the mind.

Consider the the Second Circuit’s forty-four year-old opinion in United States v. Freeman, 357 F.2d 606 (2nd Cir. 1966) railing against the M’Naghten Rule, which by then had thrived for a century, despite complaints from the scientific and medical community:

Prominent psychiatrists have expressed their frustration when confronted with such requirements. Echoing such complaints, Edward de Grazia has asked, "How [does one] translate `psychosis’ or `psychopathy’ or `dementia praecox’ or even `sociopathy’ or `mental disorder’ or `neurotic character disorder’ or `mental illness’ into a psychiatric judgment of whether the accused knew `right’ from `wrong.’" In stronger and more vivid terms, Dr. Lawrence Kolb, Director of the New York Psychiatric Institute, Professor and Chairman of the Department of Psychiatry at Columbia University and Director of the Psychiatric Service at Presbyterian Hospital, expressed a similar viewpoint when he declared that "answers supplied by a psychiatrist in regard to questions of rightness or wrongness of an act or `knowing’ its nature constitute a professional perjury."

Psychiatrists are not alone in their recognition of the unreality of M’Naghten. As long ago as 1930, Mr. Justice Cardozo observed that "everyone contends that the present definition of insanity has little relation to the truths of mental life." And Mr. Justice Frankfurter, as a witness before the Royal Commission on Capital Punishment, declared with his usual fervor: "I do not see why the rules of law should be arrested at the state of psychological knowledge of the time when they were formulated. * * * I think the M’Naghten Rules are in large measure shams. That is a very strong word, but I think the M’Naghten Rules are very difficult for conscientious people and not difficult enough for people who say, `We’ll just juggle them.’"

Even then, the courts knew the rule was scientific anathema, and yet it doggedly held on — a generation after Freeman it remained the "central ingredient" of the insanity defense in the Second Circuit, and it remains the basis for the law of criminal insanity today. United States v. Hansen, 701 F. 2d 1078 (2nd Cir. 1983); US v. Garcia, 94 F.3d 57 (2nd Cir. 1996).

Last week, The Experimental Philosophy blog updated us on the latest in this ages-old dispute:

The MacArthur Law and Neuroscience Project (along with the SAGE Center at UCSB) recently published A Judge’s Guide to Neuroscience:  A Concise Introduction. 

The introduction to the Guide is written by no less than the indefatigable Judge Jed Rakoff, who sought out from his colleagues the neuroscience questions they wanted answered, boiling those requests down to:

  • What is cognitive neuroscience?
  • What is an fMRI?
  • Can neuroscience identify lies?
  • What is neurogenetics?
  • Can neuroscience identify pain?
  • Does neuroscience give us new insights into criminal responsibility?
  • Does neuroscience give us new insights into drug addiction?
  • Can neuroscience identify psychopaths?
  • Has neuroscience already appeared in the courtroom?
  • How is neuroscience likely to impact law in the near future?
  • How is neuroscience likely to impact the law in the long run?

The answers run the gamut from it’s complicated, to sort of, to no; there’s not a single "yes" to be found.

In short, though cognitive neuroscience has much to offer in understanding the function of the brain, it cannot yet reliably provide information useful to the adjudication of civil and criminal disputes, except in rare instances.

In a way, that’s refreshing to hear.

Pseudoscience is, and always has been, endemic to the law. Even entirely reputable scientific fields can be abused and misused by unscrupulous "experts" serving as witnesses, or by misguided lawyers and judges unaware of their own ignorance. A little bit of knowledge is a dangerous thing, particularly when you’re duty-bound to apply it.

The problem is particularly acute when, as with cognitive neuroscience, the science in question purports to tell us the inner workings of the parties’ or witnesses’ minds. In discussing polygraphs — themselves often accused of being little more than pseudoscience — the Supreme Court described the problem:

A fundamental premise of our criminal trial system is that "the jury is the lie detector." United States v. Barnard, 490 F. 2d 907, 912 (CA9 1973) (emphasis added), cert. denied, 416 U. S. 959 (1974). Determining the weight and credibility of witness testimony, therefore, has long been held to be the "part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men." Aetna Life Ins. Co. v. Ward, 140 U. S. 76, 88 (1891).

By its very nature, polygraph evidence may diminish the jury’s role in making credibility determinations. The common form of polygraph test measures a variety of physiological responses to a set of questions asked by the examiner, who then interprets these physiological correlates of anxiety and offers an opinion to the jury about whether the witness—often, as in this case, the accused——was deceptive in answering questions about the very matters at issue in the trial. See 1 McCormick § 206. Unlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth. Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent’s case, a conclusion about the ultimate issue in the trial.

United States v. Scheffer, 523 U.S. 303 (1998). So it goes with cognitive neuroscience. It’s one thing when a forensic expert testifies about the presence of gunpowder on a jacket, and quite another when a neuroscientist purports to explain how he knows the defendant is lying about where the gunpowder came from.

Which is why I’m so grateful for the scientists’ candor in describing the limitations of their field. Far from being a disappointment, the negative or tentative answers given by the neuroscientists will hopefully keep snake-oil and pseudoscience out of the courtroom while the field itself continues to grow.

As fascinating as neuroscience is, then, the experience of the law still suggests relying on that most effective of lie detectors: the impartial jury.