Sunday, 28 June 2009

Lawyers and lies

In my last offering I relayed an anecdote from the dim and distant past, a snippet of my life as a barrister of moderate ability. It prompted a comment from one of the innumerable Messrs Mous. In a nutshell he alleged that lawyers lie for money. This is not just a matter of semantics, it is a matter of substance, so I want to explain why he is wrong. What I am about to say does not ignore that some lawyers break the rules. The anecdote I told was of a client who gave evidence that his right arm and hand were virtually non-functioning and then, after his evidence had been accepted and he was awarded a substantial sum in damages, used his right hand to open a heavy courtroom door. Mr Mous suggested I should have reported that fact to the judge.

The job of a trial lawyer (as they like to call them in America) is to argue his client's case to the best of his ability. It is absolutely not the job of the lawyer to judge the case. I dealt with plenty of cases in which I had grave doubts about my client's truthfulness, only to find at trial that he was quite plainly telling the truth. Equally, I dealt with many in which my opinion was that my client was in the right, only for him to be exposed as a blatant liar. If you want trial by lawyer rather than trial by court, a great many more miscarriages of justice will occur than at present. As a trial lawyer you have to suspend disbelief and just put forward what your client says, after all that is what your opponent is doing and unless both sides are argued fully how is the court meant to resolve the dispute? The process of examination and cross-examination will lead the judge or jury to agree with one side or the other once they have weighed both sides of the argument and all the evidence. That course is not open to a lawyer because he only hears what his client tells him, he does not and cannot hear what the witnesses on the other side say and, most importantly, how they say it, until trial. Their evidence will be served in writing prior to the trial but that merely lets you know what they say, it tells you little or nothing about how they will answer challenges to their version of events.

That doesn't mean we don't form a view about who is likely to be telling the truth, of course we do, and as we gain more experience we like to think our powers of assessment improve. Such an assessment can be nothing other than an opinion, however. We can tell the client we think his position is weak and explain why - and we do, we have to - but if he insists that he is correct and our assessment of the situation is wrong, who are we to disagree? We weren't there when the disputed conversations took place or the disputed incident occurred, whereas he was. Maybe he really is lying to us, maybe he is telling the truth, we cannot know either way. What we can do is advise him of the apparent weaknesses in his case and tell him how very expensive it will be if he loses and has to pay the other side's costs.

A clear majority of cases I dealt with did not go to trial. Either one party capitulated totally or a deal was done. It was only in a few that we ended up in a trial. If my client was lying, was I lying when putting forward his case? I don't think so, because in order to tell a lie you have to know that what you are saying is untrue. The lawyer was not there when the disputed events occurred, he cannot know what happened, he can only know what his client has told him. And at this point we come to a cardinal rule I have never known to have been broken in any case I was involved in. If your client tells you he is not speaking the truth you are not permitted to argue that he is truthful. If he tells you he forged a document you are not permitted to put that document forward as genuine. The reasoning behind this is that if he says it he is admitting something against his own interest and, therefore, is likely to be truthful about that. People often lie to protect themselves but they rarely lie to put themselves in trouble. If your client admits wrongdoing you are never permitted to advance a positive case to the contrary.

As to the anecdote I told, what was the position? The trial was over. The judge had given his judgment in my client's favour and then it appeared that things were not as my client had said. Is it seriously suggested that I should have invited the judge to return to court and tell him that I had witnessed something inconsistent with the evidence he had accepted? That would give rise to another series of issues which would require another trial. Where would it end? You would have lawyers being cross-examined about what they saw or heard and then the judge would have to decide those issues and consider whether they affect his original judgment. It simply isn't a practical course of events. I won't pretend it was comfortable witnessing something that appeared to undermine the whole basis of the judgment that had been given just a few minutes before. But in practical terms it would be impossible to frame a principle requiring a lawyer to report his own client to the court after judgment has been given.

Lawyers are duty-bound to put forward their client's case, decisions about the veracity of witnesses and the overall strength of a case are for the judge or jury, not for the lawyers. It makes no difference whether the lawyer is being paid. Almost everyone of reasonable seniority conducts cases each year for no fee, yet the requirement not to put forward something your client has told you to be untrue remains whether you are being paid or not.

Are lawyers paid to say whatever their client wants them to say? No, absolutely not. We are not at liberty to put forward something we have been told is untrue, nor are we permitted to advance a case that is unsupported by evidence but we are obliged to put forward a case we believe to be complete rubbish because we are not judges, we are advocates. More often than we expect, our assessment turns out to be false.


Anonymous said...

I am that Mr Mous who made the original comment.

I understand entirely that you can't necessarily be 100% sure that your client is lying, but I bet you still have a good idea whether he/she is or not. And you are still prepared to stand there and tell the 'truth' either way.

Similarly, why have all convicted criminals had a lawyer prepared to say he is kind to small animals, loves his mum, and beating a stranger on the street was totally out of character?
Why are lawyers prepared to make statements about their clients character that they can in no way substantiate?

Tom Paine said...

I have worked as a criminal defence lawyer too (as part of the "junior branch" of the profession). Anon is missing the point entirely. I often thought my client guilty, but was proved wrong at trial, when both sides of the evidence were presented. I often thought him innocent, but was wrong. Surely the point of the advocate is to present the client's case as well as he would himself, were he as intelligent, trained and experienced as the advocate? It's not about "defending the guilty". It's about ensuring everyone gets a fair crack of the whip at trial. Someday, anonymous, that might be you. You will be glad then of an advocate prepared to suspend his disbelief and do his best for you.

TheFatBigot said...

You raise two different points, Mr Mous.

How can a lawyer represent someone despite believing him to be in the wrong? I tried to answer that in the main article. The lawyer does not KNOW that his client is in the wrong, all he can ever do is believe him to be in the wrong. Who is to say the lawyer is correct? Should someone remain unrepresented, even if he is in fact in the right, simply because no lawyer can be found who believes him?

Your second point concerns pleas in mitigation. One your chap has been potted you don't cease to represent him, your job then is to put forward such mitigating circumstances as there are. But you cannot just make it up, it must all come from the client or third parties. You are wrong to say lawyers argue point they "can in no way substantiate".

Roger Sowell said...

I know not of the UK laws, but in California (and most U.S. states), the following are rules of professional conduct for attorneys:

Rule 5-200 Trial Conduct

In presenting a matter to a tribunal, a member(attorney:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law; . . . and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.
------ End of Rule 5-200 ------

An attorney is liable for sanctions and punishment from the State Bar for violating the above rules.

Roger Sowell said...

To Mr. Mous, an attorney who makes statements such as you suggest, with no foundation in fact, does more harm than good for his client. First of all, an attorney (in the U.S.) is not allowed to make any personal opinion or fact statements, but must rely on the evidence adduced by witnesses or non-testimonial. The attorney may however repeat such evidence in his closing argument. It is generally forbidden for an attorney to testify in his client's case.

The opposing attorney will seize upon any such fabrications and show they are false, thus greatly damaging the attorney's case.

james c said...

Mr Mous,

I think you are barking up the wrong tree. The client is not ordinarily going to admit his guilt to his legal team, so the question of lying does not arise. If by some chance he did, his lawyers would stand down and he would need a new team.

The lawyer is much more likely to lie over matters such as costs, obtaining legal aid etc.

Anonymous said...

I would certainly not make the claim that telling out-right lies is part of being a lawyer, as lies of that type would at best be unethical, and at worst illegal. I think though that it would be fair to say that lawyers lie in other ways; by omission, by exaggeration, and by deception, through deliberately creating a false impression. Theirs is not the only profession that practices this type of lying, other unsavoury types like politicians, used car salesmen, and real estate agents also use such techniques, techniques that could politely be described as "spin".
Now, all of these occupations are the butt of jokes about lying, and I think the reason for this is that for most of us in our everyday lives such forms of lying aren't acceptable. mislead your wife, friends, or your employer with the techniques of deception that are practiced by those in the above occupations and you will soon be accused of lying.

Andrew W.

Mesothelioma Lawyers said...

I think no lawyers who are telling the reality. Most of the lawyers lied. They are doing this just because they want to win the case and of course to be safe of the thing they are hiding of. Lawyers are very rational they will reason out just to save themselves. Sometimes lawyers are logical and resourceful, they will gather information which they think would help them a lot.

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