I guess I’m incorrigible on this point.
There’s an old lawyer I know who tells a story of a personal injury case from many years ago, during that brief interlude when courts were inclined to entertain them and juries were inclined to reward them.
Yes, it was a very long time ago, and the interlude was so brief few remember it. It probably coincided with three martini lunches, which have also vanished down history’s memory hole, resurfacing only in fictional contexts like television’s “Mad Men” series.
In any case, in this personal injury case there was a one car accident that left a man paralyzed. A very young man, so this was very tragic. Could a lawyer do something to deliver a pot of money when there’s a one car accident and thus probably no one to sue?
To make a long story short, the case was turned into a products liability case, though of course this was before we really called anything a “products liability” case. Everything was just “negligence”.
The idea was to blame the car and sue the manufacturer, since no one else could be to blame except the driver and, you know, you can’t sue yourself. Since it was a one car accident, you see. And the manufacturer is conveniently a car company with lots of money and insurance, so in the end if you win the bill you send can be paid.*
The ‘theory of liability’ was that the car was negligently built or designed – that is, that it was ‘defective’ – and it all had something to do with the way the doors were designed. Somehow, the manufacturer should have made them differently and if they had the young man would not have been catastrophically injured, as indeed he had been.
The case went on its merry way and sometime before or maybe it was during trial there was a substantial settlement in the young man’s favor.
But here’s the thing: the old lawyer (who was then young, of course) was very pleased with himself and so were his partners and everyone else in the office, and one of the reasons was that, as they often told it, the whole defective door argument was just something invented out of whole cloth, made up, then justified and rationalized and advanced and pressed to a successful conclusion.
For my own part, I’m not entirely sure that’s true. I’ve never looked into the whole case very deeply; I just listened to the stories with the mild amusement that was intended in the telling. But that’s not the point.
The point is, it’s a very dangerous thing for anyone – and especially lawyers – to conclude that the reality underlying a case doesn’t really exist or doesn’t matter, that litigation is a contest where the two opposing sides advance self-serving arguments and that the ‘evidence’ produced by each side is limited by little more than whatever one’s own imagination and self-interested will can achieve. As if winning or losing a case is only the result of cunning and the simple desire to win rather than accurately ascertaining the underlying reality, or at least one side more accurately ascertaining it than the other side.
One of the main reasons this mindset is so dangerous is what might be called the marginalization of honesty. An honest lawyer will not make a fight unless he thinks the underlying reality supports the fight he is making. That doesn’t make him necessarily right, of course. He might be wrong about the underlying reality. But it matters whether he is honestly mistaken or, say, just doesn’t give a shit whether he is mistaken. Or at least it should matter, even though the practical result might be the same: mistaken is as mistaken does.
But notice, if he’s not honestly mistaken but being, say, deliberately deceptive, it resembles a very similar phenomenon to Bill Black’s adage that dishonesty drives honesty out of the market: the honest lawyer can’t compete with the dishonest one. A lawyer who will make any argument regardless of honesty will have a lot more winning arguments than an honest opponent.** The honest lawyer is constrained by the limits of reality and the dishonest lawyer is not.
Of course the system addresses this after a fashion: honesty from lawyers – whatever side they are representing – is to be presumed. Not conclusively, but close. This is because their fundamental honesty is supposed to be sorted out when they are admitted to practice - there is a rigorous vetting process for “character and fitness”. That is not a joke.
But it seems like a joke, to everyone reading this. And sadly, to judges and lawyers themselves.
We just posted about a Brady violation, and we’ve been coming back over and over for the last few months to this distinction between the deliberate suppression of evidence and the inadvertent suppression of evidence by a prosecutor. That is, the difference between an honest mistake and lying and cheating. A distinction which, it seems, only we here at Lawyers on Strike seem to care about. We have noted that the deliberate suppression of exculpatory evidence by a prosecutor always violates the defendant’s right to due process of law whereas its inadvertent suppression may, or may not.
And so it becomes important in that context to determine whether a prosecutor’s conduct has been deliberate or not. In other words, what was or is going on in the proecutor’s head?
Of course, suppression is as suppression does, whether it’s deliberate or inadvertent. A criminal defendant who was convicted and sent to prison when evidence that might have made a difference was withheld doesn’t care whether the prosecutor meant to or not. And explaining to him that he lost his post-conviction plea for release because although that evidence was wrongfully suppressed it wasn’t deliberately wrongfully suppressed will seem both arcane and ritualistic.
But lawyers – and especially judges – do have to look out for the system, too. The system’s integrity, to be more specific.
And here is an uncomfortable truth: the system can have no integrity so long as its officials – and that includes all lawyers, and to be more specific again it includes criminal defense lawyers – subscribe to the opinion that there is no such thing as really true and really false, really guilty and really innocent, because if that’s true there’s no way to distinguish between honest and dishonest. After all, an honest man is one who will not engage in willful falsehood, which becomes a meaningless definition if nothing is true and nothing is false.
Of course we live in an imperfect world. And we are not a perfect profession. So we add this caveat: the system would be diminished and deeply flawed, but not necessarily entirely dysfunctional, if large numbers of criminal defense lawyers subscribed to that opinion. ***
But it would be entirely dysfunctional if a prosecutor did.
And if the police subscribe to it? We’ve had a commenter over here, Martin Preib (just follow the link and read through the comments), who for want of a better term (since this post is already too long) is a cop-apologist. He represents the mindset of the majority of police. And notice the perspective: it’s not that he explicitly endorses the idea that the stronger will prevails regardless of underlying reality – that is, a sort of latter day Nietzsche point of view – it’s that he can’t tell the difference between a case where the underlying reality lines up with his opinion and a case where it doesn’t. To him, the Anthony Porter ‘wrongful exoneration’ and the Central Park Five are the same thing: their team versus our team. Which side are you on? It’s not so much that he denies the categories of truth or falsehood explicitly; he just unconsciously doesn’t use them because he is unaware of them.
So we ask ourselves whether this mindset has its origins not in the police departments themselves, but in the corruption of the legal profession that was already worrisome, albeit subtle and confined to less significant matters, all those many years ago, and which may have filtered down to the police in the years since.
And we also ask if anything can really be done when things have deteriorated to the extent they have.
* The reason you often see lawsuits where it seems like the Plaintiff has sued someone who doesn’t seem to have much fault is that many times the only person or entity that has enough money or insurance to cover a large bill is a person or entity that, well, doesn’t have much fault. In many instances, a little fault is enough, due to a concept called “joint and several liability”, which we won’t discuss here because it’s too boring to write about, although it is far from boring when you have to decide who to sue and whether the monied person or entity you have your eye on has any genuine fault. But never mind.
*** To be fair, the criminal defense lawyer’s practice tends to lead him in that relativist direction because it is so much more nuanced and intellectually difficult than a prosecutor’s