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.