REGULARS

FROM THE PRESIDENT

The adversary system of justice, and particularly the right to cross-examine opponents, forms a great engine for the pursuit of truth. Just as competition in the marketplace can produce efficiency, and competition in the marketplace of ideas can produce wisdom, so competition in the courts can produce truth.

But if lawyers are not committed to the truth, the engine stalls.  The lawyer for Orenthal J. Simpson spoke of that criminal trial as a “search for truth.” I believe that search got derailed largely because a prosecution witness was caught in an inflammatory lie.  The case remains a lesson about the importance of truth in our judicial system. 

It seems popular these days to denigrate the importance of telling the truth, or even whether we can identify something as true in a relativistic world. True, there are extreme hypotheticals where lying might be moral, such as when a Nazi asked for the location of a Jew.  And there might be justifiable social lies, such as complimenting a young child’s artistic creation beyond what it deserves.  Still, there is far too much inappropriate lying in today’s society.

Many lawyers avoid phone calls by asking their secretaries to falsely say the attorney is out of the office.  Many people will lie to save a few dollars on an admission ticket. Many lawyers sign declarations falsely stating they have “personal knowledge” of something based entirely on hearsay. Many people even make solemn promises at religious events that they have no intention of honoring, such as a spouse’s promise at a wedding, or a godparent’s promise at a baptism.  Many lawyers move from acceptable puffing to possibly actionable fraud in settling cases.  Most plaintiff lawyers seem to assume lawsuit defenses and verified answers will be based on perjured statements.  Some people think legal bills are getting away from the truth.  Under Code of Civil Procedure §170.6, the accepted practice today seems to be a lawyer signing a declaration under penalty of perjury that a judge (who hopefully committed her career to fairness) is prejudiced and thus unable to give a fair and impartial trial, when in fact the truth is that the lawyer simply prefers a different judge.

Another growing problem relating to truth is our mass media where people seek to shape the truth.  Lots of folks get paid lots of money making a sow’s ear look like a silk purse.  When politicians do this, it is called “spin.”  When people do this, it can be called “rationalizing improper conduct.” When lawyers do this, it is sometimes called “thinking like a lawyer.” Think about it: lawyers are trained to creatively make a set of facts applicable or inapplicable to a law or a case.  We are trained spinners and rationalizers.  Too often, we follow the letter of the law, but certainly not the spirit of the law.  Too often, we give statements which might arguably be “the truth,” but can never be “the whole truth, and nothing but the truth.”  Too often, we prepare our witnesses to “spin” without regard to truth.   I remember testifying in a case where I had suitable spins that I felt impelled to reject the moment I raised my hand and said “the whole truth, and nothing but the truth, so help me God.”

We must find ways of increasing our commitment to telling the truth.  The truth is that the truth ensures our integrity as individuals and the integrity of our institutions.   In Arthur Miller’s The Crucible, farmer John Proctor is told he must sign his name to an untrue statement or be hung.  Proctor refuses to sign, saying, “How may I live without my name?  I have given you my soul; leave me my name.”  The play ends with him hanging.  More people today should attach that kind of importance to the integrity of their name. 

A commitment to telling the truth   provides an added benefit of promoting proper conduct in all aspects of life.  It has been said that moral conduct should be measured based on the response it would receive if described on the front page of the Los Angeles Times.  Likewise, if you are committed to always telling the truth, including the truth about your conduct, you will tend towards conduct suitable for front page publicity. 

Since the truth is an essential ingredient in the third branch of our government, it is particularly important that lawyers be truthful in their conduct, particularly as they search for truth in trials.  Numerous things can be done in the judicial system to promote the pursuit of truth.  Judges and district attorneys should be more open to perjury prosecutions.  Bar associations should look carefully at charges of lying and perjury by attorneys.  We should instruct our secretaries never to lie for us with comments about being “away from the office.”  We should avoid “spinning” the truth inconsistent with obligations to tell “the whole truth and nothing but the truth.”  When preparing witnesses to testify, we should emphasize the crucial importance of telling the truth.   In settlement discussions, we should distinguish between acceptable puffing and unacceptable misrepresentations.  We should never let the bureaucratic necessity of filling out forms allow us to overlook false and even perjurious statements, from declarations of “personal knowledge” to §170.6 declarations of judicial prejudice.  If we believe that peremptory challenges of judges should be without cause, then we should amend §170.6 rather than make false statements under penalty of perjury.

Finally, in our courtrooms, we should promote a certain unique dignity and formality that is inimical to lying.  I believe courtrooms should be dignified and perhaps even physically imposing.  A witness stand is raised partly so the witness is visible, but perhaps also to focus attention on the witness in a way which promotes truth.

When I have testified in court, I have noted a unique isolation on the witness stand which I would hope might put someone intending to lie off balance.

I do not advocate robes and wigs for trial attorneys, but I suspect they add to a unique unfamiliar formality making at least some perjurers uncomfortable.  Finally, oaths in courtrooms, and even in depositions and otherwise before notaries and others, should be administered with as much dignity as possible.

We have appropriately done away with oaths using the Bible, but Code of Civil Procedure §2095 gives broad discretion for alternatives.  We are challenged to make our modern oath have as much impact today as a Bible gave God-fearing citizens of old like John Proctor.

And that’s the truth.

Mr. Guilford’s e-mail address is aguilford@smrh.com.