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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

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Dear LIE:

Let me get this straight. In the “Grace L Ferguson Storm Door and Law School” that you apparently attended there were no courses on Dissembling, Evidence Tampering, Deceptive Redaction, or Sophistry 101? Are the bullies in the courtroom too much for your prissy notions of procedural and substantive due process? Remember, you are out in the west — the wild west — to be more precise. Lying, cheating and stealing is what made America great.

Just ask the Native Americans. Where would we be if everyone had played it straight with those folks?

This is a competitive culture. What you seem to be saying is that lying, cheating and stealing have no part of the competition in court. What do you think litigation is all about? Oh, let me guess what you are thinking — fair play and substantial justice? Are you suggesting that in a court of law rules should be followed and adhered to by the participants? If that caught on, pretty soon you will have citizens suggesting that lawyers be sworn officers of the court with a duty to uphold the rules, to fairly and accurately present the facts and evidence, and to conscientiously cite and fairly argue the law. Where would all that meddling lead? Next thing, someone will suggest rules of professional conduct and other meddlesome nuisances.

Why make a big deal out of learned California counsel citing a minority opinion in a case as though it were the controlling legal authority? What are you implying; that minorities do not count? Put on your civility hat for a minute and try to look at it through rose-colored glasses. Perhaps he was just simply trying to give the judge who wrote the minority opinion his or her day in the sun.  Maybe he was just trying to plant a seed so that the majority in that case might hear of the argument and see the error of their ways.

And if we start following rules, imagine the impairment to creativity and imagination. You are almost suggesting that distributive justice should be based upon what actually occurred and not what might be deceptively sold to the unwitting. Imagine what could happen. Why, the ripple effect could be uncontrollable. It might even bring an end to multi-level marketing and send Utah County into a recession that no treasury printing-press could correct.

And about that nasty swipe at judges.  Certainly a small number of my colleagues fit your characterization, but it does not escape my notice that you have violated six or seven tenets of civility with your wide-eyed slap.

Think of all the hurt feelings if judges played it tough with lawyers that lied about the facts or law. [Well, just listen to me, I used that nasty "L"

word.] And look at how harsh a judge would appear if he or she were to call counsel out in public because they grossly misrepresented a fact or an exhibit or a holding of a case. Do you think it’s really worth all those frowny faces just to preserve the integrity of our legal system? If you think lawyers would be unhappy with stern finger-wagging from a judge, imagine how stressed they would be if they had to know and understand the Rules of Civil Procedure and the tenets and principles of our time-honored jurisprudence, much less follow them. Are you suggesting that lying is uncivil?

Well, what if it is done in a soft tone and with a smile?

Maybe you are just not in step with a new world that is free of stress, discipline, sacrifice and integrity. Why be concerned about whether the process lacks substance? When people come visit these proceedings, everyone will be smiling and happy, speaking in soft tones, using cuddly, warm and fuzzy words and polite gestures toward one another. Why, it will be like the happy cartoons we watched when we were kids. “Th-th-th—th, that’s all folks!”

Fondly,

Tongue

Clerk’s Post Script:  With all due respect, I believe (actually, I know) the good Judge lifted a few too many snifters while he penned this reply. Be assured he knows the liars and cheats (oh, forgive my uncivil tongue), and they pay — trust me, sooner or later, they pay.

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