Contemporary Take on Timeless Ethical Questions
Contemporary Take on Timeless Ethical Questions
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Stanford III: Litigators and Truth
July 17, 2010, 3:04 pm It is another beautiful day in Palo Alto. Very few of the professors visiting Stanford for the Fourth Annual Conference on International Legal Ethics have left on this second day. Despite the rewards of the weather, the lecture rooms of Stanford Law School offered high quality presentations on legal ethics. One presentation that caught my interest concerned the relationship of lawyers to truth. (No the answer is not when his lips stop moving.) Litigators in particular are deeply involved with truth. A trial is after all a process meant to reveal the truth or some approximate version of it. There are, moreover, lots of ethical decisions litigators need to make which can dramatically effect how effectively a trial evokes the truth. When, for example, is it appropriate to educate (or "coach") a client about what other witnesses have said and what documents contain? Should a lawyer be tough or easy in responding to document requests from other lawyers? There is a lot of variability in how lawyers handle such requests. One study suggests for example that younger partners in law firms tend to be most engaged in calculated withholding of documents. Despite the fact that they are dealing with issues of truth, litigators, according to research by Kimberly Kirkland, Law Professor at Franklin Pierce Law Center (New Hampshire), tend not to think they have any difficult ethical issues in their legal practice. Why not Prof. Kirkland wonders. Her answer is that corporate litigators see it as their job to construct rather than discover the truth. Its a deeply embedded idea in the working culture of most firms and lawyers learn early on in their careers that the truth is not so important as advocating for your client's version of it. What's fascinating about Prof. Kirkland's account is the social construction of this client-oriented norm of truth-seeking. Young lawyers learn early on in their careers not to ask ethical questions about truth. Instead they worry about keeping the partners they are working for happy and the partners are worried about keeping the clients happy. Its a lot of faith in a strictly adversarial system to discover the truth. Only if the other side is as effctive in arguing for its version of the truth will a jury come close to finding he truth.0 Comments You must be logged in to leave a comment. |
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