June 01, 2019 Feature

Liars Don’t Always Lose

Jacob Stein (originally published in Spring 1996)

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He told them the truth and they fell for it.

—A lawyer referring to his client’s testimony

We are, I know not how, double in ourselves, so that we believe what we disbelieve and cannot rid ourselves of what we condemn.

—Montaigne

Rule 102 of the Federal Rules of Evidence declares that a key objective of the rules is the ascertainment of truth. No law school would presume to offer a course in Truth. Truth is too unwieldy a subject for a law school class. Truth, perfect truth, is a platonic ideal existing in the abstract. Truth is like the element sodium. It is everywhere but never in its pure form. It is one of those elements that combines with whatever is near. When it hits the air, it is sodium oxide, and, of course, there is salt, sodium chloride. But pure sodium? We never see it.

There is a story that in a courtroom in Kentucky when a witness was asked to swear to tell the truth, the whole truth, and nothing but the truth, he replied, “Which one do you want?”

The truth lawyers see is a sodium truth. It is always truth combined with something else. There is the taint related to bias and prejudice. There is the taint of deliberate falsehood. And a dozen more. No, truth is not for law schools. But, I suggest, falsehood is a proper subject for law schools. Law schools should put in one compact course what every lawyer needs to know concerning how the law treats falsehood. It is knowledge required as a protection for the lawyer and for the client. In addition, a lawyer should know something concerning cases of historical significance in which falsehood played a part. Otherwise, the lawyer is ignorant of his or her professional literature.

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