Tweet

This post is a follow up to my posting at http://www.divorceutah.com/a-system-built-to-fail/

How to Improve Family Law in Utah – 1) Judges stop tolerating lies

The following column comes from “Justice Tongue”  in the Spring 2011 issue of  the Salt Lake County Bar Association quarterly newsletter, “Bar & Bench.”

This Justice Tongue column is sardonic because for a lawyer or judge to come right out and admit that we lawyers and judges are failing the justice system and the public for which it exists will make you a pariah in the profession.  Enjoy, but take heed of the underlying dire warning.

Dear Justice Tongue:

I recently completed the third CLE program that has belabored the issue of civility. In a word, “I get it.” I’ll spot you civility has its place, but we are “fiddling while Rome burns.” While we’re sitting in seminars learning to play “patty-cake” with one another, there is a widespread, gathering, ominous trend in litigation practice wherein lawyers are raising lying, cheating and stealing to high art. It is my less than rare burden anymore, in both motion and trial practice, to watch members of the bar systematically misrepresent evidence and wholly and completely misrepresent the holding of cases. In fact, a colleague of mine reports that a lawyer from a big firm from LA showed up in a hearing and actually cited as controlling law the minority opinion of a case. This trend is beyond concerning and an increasing number of disinterested judges are blithely standing by (or sitting, if you please) while one of the most sophisticated, elegant systems of justice this world has known deteriorates toward our popular culture of “anything goes” amoralism [sic]. We seem to be more interested in good manners than the truth.

Tell me I’m too cynical.

Sincerely,

Let’s Invent Evidence (L.I.E.)

L.I.E. put it earnestly and eloquently.  If you want to read Justice Tongue’s response, it’s here at http://www.divorceutah.com/lawyers-know-that-civility-is-all-too-often-the-refuge-of-scoundrels/, but I want to focus on L.I.E.’s letter.  He (I don’t know if L.I.E. was a man or woman, so we’ll opt for the male pronoun) is so right:

“I’ll spot you civility has its place, but we are ‘fiddling while Rome burns.’”

“While we’re sitting in seminars learning to play “patty-cake” with one another, there is a widespread, gathering, ominous trend in litigation practice wherein lawyers are raising lying, cheating and stealing to high art.”

“This trend is beyond concerning and an increasing number of disinterested judges are blithely standing by (or sitting, if you please) while one of the most sophisticated, elegant systems of justice this world has known deteriorates toward our popular culture of ‘anything goes’ amoralism [sic].”

“We seem to be more interested in good manners than the truth.”

That bears repeating:  We seem to be more interested in good manners than the truth.  Amen!

“We are easily shocked by crimes which appear at once in their full magnitude, but the gradual growth of our own wickedness, endeared by interest, and palliated by all the artifices of self- deceit, gives us time to form distinctions in our own favour, and reason by degrees submits to absurdity, as the eye is in time accommodated to darkness.”
Johnson: Rambler #8 (April 14, 1750)

Now do not get me wrong.  Make no mistake.  I subscribe generally to the principle that you catch more flies with honey than vinegar.  Notwithstanding, there are some bizarre notions cropping up in the practice of law in Utah that revolve around this mania for civility; for example, the idea that if the opposing party (and by opposing party I mean the opposing party and his counsel collectively) takes a ridiculous position you must “respect” it.  Hogwash.  If an abusive, drug-addled, absentee parent seeks an award of sole physical and legal custody of children, nobody need respect such a crazy idea.  But having no respect for a ludicrous or disingenuous position cannot be considered synonymous with disrespect.  What do I mean?  Something like this:

Opposing Party:  My  abusive, drug-addled, absentee parent client seeks an award of sole physical and legal custody of children.

Me:  That’s ridiculous.

Opposing Party:  I find your opinion offensive.

Me:  Likewise.

Opposing Party:  You need to negotiate with me in good faith.

Me:  Likewise.

Opposing Party:  Are you implying that my client’s case is frivolous?

Me:  No, I am expressly and overtly declaring that your client’s case is frivolous.

Opposing Party:  That’s uncivil and unprofessional.

Me:  Nothing could be further from the truth.

Opposing Party:  Read Standard of Professionalism and Civility Number 3.

Me:  Read Rule 11 of the Rules of Civil Procedure.

Opposing Party:  So what concessions are you willing to make?  I can probably talk my client into joint custody if you will advise your client to do the same.

Me:  That would constitute nothing but compromise for the sake of compromise and neither  doing what is best for the children nor doing what is equitable and plain morally right.  You wouldn’t want or expect a judge to do that, so we won’t either.

Opposing Party:  So are you saying you won’t work with me?

Me:  Not if it means conceding to the  extremely ludicrous position you and your client take.  Make me a genuine offer of principled compromise.

Opposing Party:  You don’t have to like my position, but you must respect it.

Me:  That’s silly.  What if your position advocated the genocide of all Jews worldwide, would you expect any sane, decent person to be honor-bound to respect that?

Opposing Party:  Now who’s being silly?

Me:  You are, still.  You’re the one who maintains that no matter how absurd your position, I must “respect” it.  And you take this sly position for the purposes of deceiving me, fraudulently shaming me, and manipulating my goodwill.  You know what you’re doing and you know that I know it.  You can persist in this charade, but I won’t participate.  And if you consider that offensive, uncivil, or unprofessional, that is proof that you cannot be taken seriously.

Opposing Party:  Well then I am going to tell the judge you refuse to negotiate, and I will tell her how offensive you are.

Me:  You do that, and while you’re at it, please tell the judge what you wanted my client to agree to do.  Let’s see how much respect the court has for your position.  If you think it’s such a winner, you should proceed confidently and righteously into trial, where–if you truly believe your position has merit–you’ll handily prevail to my everlasting embarrassment.  Let justice be served.

Anyone who would contend that such an exchange is somehow wrong on my part is, I respectfully submit, deluded.

Re-establishing the truth as law’s most fundamental, crucial, and valued aim in the pursuit of justice will do more to benefit the practice of law than anything else.  To be intolerant of lying and fraud (even to the point of giving offense) is to be just.  To be tolerant of lying and fraud is to be unjust (perhaps not totally unjust, but one’s tolerance for lies and deceit is inversely proportional to how just one is, and when is being partially just a virtue, even if one contends that being partially just was for the purpose of being “civil and professional”?).

Just as we have rules that govern statutes of limitation and filing deadlines, we have rules against lying and deceit.  Yet nowadays you’re more likely to be penalized for filing a witness list a day late than you are for lying to the court as to the reason you filed late.  We need to get our priorities straight.  Frankly, the legal profession in Utah (I can’t speak for any other state) has lost its bearings when it comes to the value it places on truth.  The sole purpose of our justice system is the pursuit of justice.  To pursue justice one must seek, find, acknowledge, accept, and submit to the TRUTH.  No exceptions.  The truth can accommodate mercy.  The truth can accommodate pragmatism.  But truth and lies can no more co-exist than can life and death.  Otherwise stated, you can’t be a little bit pregnant.  Unless the public knows lawyers and judges seek and strive to uphold the truth in the process of dispensing justice, we will never have the public trust.  To that end, incivility  in the pursuit and defense of justice and equity is no vice.   And while it is always good when civility and respect for truth co-exist (they can), the sacrifice of truth (and thus justice too) on the altar of “professionalism and civility”  is never a virtue.

When a judge sees that a party and/or its attorney has lied and by that lie sought to deceive or defraud the court, the court should respond with harsh, memorable punishment.  Not out of a sense of outrage (although lying to subvert justice is the epitome of outrageous), but out of a much more practical concern: the proper and efficient functioning of the judiciary.  When litigants and their lawyers know that there is no tolerance for lies in court, when they know that lying will be severely penalized, then fewer cases will clog the courts, law suits will proceed more quickly and inexpensively, bar dues will go down, and the volume and hilarity of lawyer jokes will substantially (and deservedly) decrease.  What’s not to like?

Tweet