By Boot, Max
The American Enterprise , Vol. 10, No. 3
LAWYERS PLAY TO WIN, BUT THERE ARE LINES THEY AREN'T SUPPOSED TO CROSS.
An Irishman stopped before a grave in a cemetery whose tombstone declared: "Here lies a lawyer and an honest man."
"An' who'd ever think," he murmured, "there'd be room for two men in that one little gravel"
THE GENERAL PUBLIC, whose view of the legal profession can be summed up in 1,001 lawyer jokes, might be shocked to know that lawyers have some obligation to tell the truth. But they do--as Bob Bennett, President Clinton's lawyer, can attest. During the Paula Jones deposition, Bennett introduced an affidavit from Monica Lewinsky that, he assured the court, meant she had had "absolutely no sex of any kind in any manner, shape, or form, with President Clinton." The Big He then affirmed that her affidavit was "absolutely true."
When it later turned out her affidavit was absolutely false, Bob Bennett faced a serious problem. If Clinton had told him beforehand of his relationship with Monica, Bennett could have been disbarred for making false statements in court. If--as seems likelier--Clinton lied to his own lawyer, then Bennett was still under an ethical obligation to set the record straight and withdraw from the case. Bennett carried out his duty in a September 30 letter to Judge Susan Webber Wright telling her, in legalese, oh never mind. Clinton, himself a member of the Arkansas Bar, could still face disbarment if it can be proven he lied under oath.
The Clinton case highlights the law's uneasy relationship with the truth: Lawyers play hard to win, and they're supposed to, but there are lines they aren't supposed to cross, ethical obligations they oughtn't violate. Movies and TV celebrate the gamesmanship of the profession--the clever gambit that can win a million dollars or free a man charged with murder--but all that jousting and maneuvering is supposed to result in a noble goal: finding out what actually happened. It may seem paradoxical to assume that truth will result from the adversarial process, sort of like assuming a food fight will produce a delicious meal. But that's the premise of our legal system.
How well is the system doing its job? If we judge by the evidence of two of the most famous legal cases of the 1990s--one civil, the other criminal--the answer is: not very well at all.
In the O. J. Simpson case, Johnnie Cochran managed to turn a mere murder trial into a referendum on racism in America. He skillfully shifted the focus from the overwhelming evidence of his client's guilt to Detective Mark Fuhrman's use of racial epithets. Indeed in closing arguments he even compared Fuhrman to Hitler. The overwhelmingly black jury was so determined to "send a message"--they only deliberated for four hours--that the question of who actually killed Nicole Brown Simpson and Ron Goldman (Colombian drug dealers? Kato Kaelin? the LAPD?) was all but forgotten. It was small consolation that Simpson was later held liable by a civil jury.
In the breast implant cases, the kings of torts achieved a feat almost as impressive as Cochran's: They won billions in damages anti drove breast implant manufacturer Dow Corning into bankruptcy--no matter that the scientific world is virtually unanimous that breast implants don't cause any systemic diseases. The scientific truth counted for little against the plaintiffs' parade of sympathetic women and "expert" testifiers whose chief expertise lay in collecting three-figure hourly fees.
WHEN JOHNNIE COCHRAN has displaced Perry Mason as the most famous lawyer in America, an observer might be forgiven for wondering: Whatever happened to the truth? Aren't trials about establishing the facts? How did the system go so badly awry?
How naive! How eurocentric! How patriarchal! Some of the leading lights of the legal academy contend that concepts like "the truth" are badly outmoded. In their book Beyond All Reason, Daniel A. Farber and Suzanna Sherry quote Stanford Law Professor Deborah Rhode: "Knowledge is socially constructed rather than objectively determined. …