March 29, 2011

Speaking the Truth

Judge Eric G. Bruggink

I was asked to participate in this panel immediately after I listened to a Sunday morning talk show involving one of the White House lawyers. It had to do, of course, with whether or not the President had lied under oath. I was struck by the spirited defense David Kendall gave to a certain point of view about the place of truth in litigation. I was amazed, and frankly, offended, at the candid way the lawyer in this scenario defended the notion of dissembling. When pushed into a corner about what the questioners apparently thought was blatant lying, his response, in substance, was twofold: one, there is no generalized obligation to tell the truth in a broad sense; and two, the truth is squishy; therefore it is virtually impossible to demonstrate that someone intentionally lied. The only legal obligation is to narrowly answer questions accurately, even if you know the overall impression is misleading. As Mr. Kendall put it: "[H]e answered the questions narrowly, but truthfully. There was no perjury there. Was he trying to mislead the Paula Jones lawyers, absolutely."(3) He added: "You ought not if asked your name to give your name and address. The trick is to try to answer questions and any lawyer will tell you this."(4)

I don't want to debate the factual correctness of what David Kendall said. He may well be right that there was no technical perjury. And I don't mean to pick on David Kendall. He is just a useful foil. The trouble is, his viewpoint that truth and litigation are only nodding acquaintances is not unique. It has affected a large portion of the bar and it unfairly colors what the public thinks about our system of justice. I think you saw the same thing reflected in the way the Simpson defense was handled, and you saw it fifty years ago when the legal system in the South was not very fussy about the quality of evidence when trying blacks accused of crimes against whites.

My concern is that this type of law practice has infected our culture with the idea that juridical "truth" has no necessary connection to reality, and that it certainly has no direct accountability to larger moral principles. My concern is with what Mr. Kendall refers to as "the trick." My thesis is that our legal system has no integrity and will lose public confidence if it is not bound by notions of objective truth. We can have a process dedicated to law that is devoid of submission to the truth.

To develop that thesis I want to examine the two assumptions I see in what David Kendall said: that there is no generalized obligation during litigation to tell the truth--there is only an obligation to be technically correct in answering questions; and that the truth is inherently fuzzy. What both reflect is an increasing disconnect between litigation and truth telling.

A recent book entitled Why Lawyers (and the Rest of Us) Lie & Engage in Other Repugnant Behavior by Mark Perlmutter, contains some amazing extracts from the annals of litigation. If he is right, lying has almost become normative--truth becoming anything for which you can plausibly make a case without running afoul of ethics rules or perjury charges. If so, that is an insidious development. He points out the type of behavior we have all either seen first hand, or heard frequent complaints about. They concern lawyers.

1. Asking for time extensions to which they are not entitled.

2. Using privilege designations to hide documents.

3. Deliberately destroying or concealing information.

4. Lying during settlement negotiations.

5. Over-preparing witnesses to the point that they perjure themselves.

6. Coaching witnesses to deliberately throw off a questioner by answering a different question than the one asked.

7. Setting up witnesses to use the truth to disguise a lie. "Do you have this document in your possession?" "No, I do not have this document in my possession. (I just gave it to my lawyer)."

8. Engaging in deceptive billing practices.

9. Making groundless objections to discovery.

10. Making groundless motions for the purpose of delay.

Our court is fortunate that we seem to attract professional and honorable lawyers and fewer unprincipled litigants. And there have been very few occasions in thirteen years on the bench in which I have had to find that one person was telling a direct lie. Sometimes I suspect witnesses and lawyers of serious exaggeration or of deliberate distortions. But the type of behavior Perlmutter identified does go on, and it obviously feeds public cynicism about the practice of law, the judicial process and government in general.

I don't think I am being naive in believing that the truth matters in a courtroom. You might say the whole framework is built on the assumption that it matters--that we're not engaged in a charade, that real truth exists, and if the light of that truth is not brought to bear, the result of the litigation process is flawed. As a trial judge, I am charged to administer oaths. The witnesses raise their hands, and then, under penalty of perjury, swear to tell the truth, the whole truth and nothing but the truth, so help them God. That oath is fundamentally at odds with the idea that one can give "technically correct and narrow answers" when it is known that the overall effect is to mislead.

The Model Rules of Professional Conduct are admittedly not as clear as I would wish. Rule 3.3, which deals with candor to the tribunal, prohibits an attorney from making a knowingly false statement to the tribunal.(5) But if being cute with words has the effect of creating a false impression, then in my judgment it has the effect of misleading the tribunal. A half truth can operate as a lie.

Irrespective of the arguably narrow reach of the rules of ethics or the law of perjury, I reject the argument that there is no generalized obligation to tell the truth. Being clever with words in a way that the truth is a casualty has a corrosive effect, not only on people as individuals but on society as a whole. I don't think it is an exaggeration to say that there is a connection between freedom and a reverence for truth. If the participants in the judicial process--whether we are lawyers, witnesses, or judges--treat litigation as a large game, the goal of which is to win at any cost, even at the cost of the larger truth, the public understands that we are not talking about a system of justice.

By way of contrast to the today's image of the slick mouthpiece, consider the following true story. Two lawyers were in Springfield, Illinois, the state capital, waiting to argue a case on appeal to the Supreme Court. One lawyer had to leave. He could not afford to wait in Springfield long enough to participate in the oral argument, so the first lawyer volunteered to argue both sides of the case on appeal. After the results came in, he wrote the other lawyer:

My dear Mr. Bishop:

The Supreme Court came in on the appointed day and I did my best to keep faith with you. Apparently I argued your case better than my own, for the court has just sent down a rescript in your favor. Accept my heartiest congratulations.

Very sincerely yours,

A. Lincoln(6)

It is hard to imagine a comparable offer in today's carnivorous legal environment. Sometimes I ask the lawyers in my cases to explain the other side's position in the best possible light. I do that of course to see how well the lawyers are communicating with each other. But you would be surprised how reluctant some lawyers are to state the other side's argument. It is almost as if they consider it to be some kind of ethical violation.

The second part of Mr. Kendall's justification is worth looking at as well--namely, that the truth is squishy; therefore, we can't hold witnesses to high standards of fidelity to the truth, because, after all, who knows what the truth really is? He has some support. Professor Menkel-Meadow of Georgetown wrote recently that "[i]f late-twentieth century learning has taught us anything, it is that truth is illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and, most importantly, complex."(7)

There is nothing new about this so-called insight. McGeorge Bundy wrote in 1967 in defense of the Vietnam War that "gray is the color of truth."(8) I would submit that England would have been defeated in World War II if that sort of moral confusion had gripped Sir Winston Churchill. Much further back, Pontius Pilate captured the cynicism of this approach. When Jesus said that people who honored the truth listened to him, Pilate responded, "What is truth?"(9) In this mind set, truth is seen as elastic, unattainable, and true only to the extent it can be asserted successfully.

This view has been de rigeur on most college campuses for a long time. An even more alarming development nowadays, however, is that truth must be evaluated for political correctness. I read recently a piece in the Wall Street Journal about Mary Lefkowitz, who has written a book called Not Out of Africa.(10) It takes a hard look at the historical evidence for Afrocentrism. She attended a lecture at Wellesley by a prominent professor who espouses Afrocentrism. In his talk, he claimed that Aristotle stole his ideas from the library at Alexandria. She raised her hand and asked if that could be true given the fact that Aristotle died long before the library was established. His response was a classic of political correctness: he stated that he resented the "tone" of her question. After the lecture, some students came up to Ms. Lefkowitz and accused her a being a racist.(11)

The colloquial justification often given for this position is the example of the five blind Hindu fakirs and the elephant. One grabbed the tail and said it is very much like a rope. One grabbed the leg and said it is very much like a tree. Another felt the trunk and said it was like a snake, and so on.(12) The lesson we are supposed to learn from this is that truth is subjective. But this is demonstrably not correct. Someone with two good eyes could give a very accurate description of the elephant.

The fact that our knowledge is imperfect--in other words, that different witnesses describe the same event in inconsistent ways--does not mean that there is not, in fact, an objective truth to be discovered. Nor does it mean that we should throw up our hands and tolerate what amounts to fabrication. As Abraham Ordover, then a professor at Hofstra University of Law, wrote several years back:

Truth is a complicated philosophical matter which, in the absolute, is too elusive and complex to define properly. . . .

Truth-telling, however, is a different matter, one over which each individual has control. We may not know the truth in the philosophical sense, but we certainly know when we intend to tell the truth as we know it. . . . [A]lthough the whole truth is unattainable, this has little to do with our choice about whether to lie or to speak honestly.(13)

In other words, yes, the truth can be elusive, sometimes it can be available only in part, and it frequently is complex. But it emphatically is not two-sided, and it is not dependent on the "characteristics of the knowers."

All of this suggests a motivation for deception that is somewhat abstract, and even intellectual and noble. The real reason most people lie (and I will include myself) is nothing more complicated than self-interest--what some have called the practice of self-interested deceit. And the temptation to lie to cover up mistakes or to put ourselves in a more favorable light can be overwhelming.

You get the impression that for many lawyers, the truth is nothing but a nuisance. Sort of like the crazy aunt who lives in the attic. You have to cope with the fact that she's there, but, by golly, you're not going to call attention to her.

Certainly, as to the most basic elements of the trial--"What happened?"--we should not tolerate imprecision or dissembling. But it is only more recently that our culture has given up the idea that there are also overarching "truths"--assertions that are harder to verify with our senses; moral verities that exist independent of whether some people contest them. The founders of our republic, for example, had no trouble saying that certain truths were "self-evident." Truths that have existence independent of law or government or "spinmeisters." Those kinds of elevating, leavening, civilizing principles have a hard time growing in a culture that is deeply cynical and fundamentally rejects the notion that certain beliefs are more valid than others.

Consider what Aleksandr Solzhenitsyn wrote: "One word of truth shall outweigh the whole world."(14) Those who sought to bring about the end of the Soviet empire had two choices: physical force or moral force. The first was not available to them; the second, as Solzhenitsyn said, was irresistible, because there are moral truths.

In our culture, by contrast, there is a crisis of truth, a reflection of a larger crisis of confidence in what is authority. The result is a generation--my generation--that is virtually incapable of speaking with confidence to the succeeding generation of what is true. Instead we get such debilitating sentiments, as "It's not for me to say what's true." And I lay part of the blame for that on the way we practice law.

As a culture we have consigned virtually all dispute resolution to the legal system. The trouble with so deeply imbedding litigation into the resolution of all disputes is that we confuse the question of "can I" with "should I?" Can I get a divorce? Can I fire my workers? Can I walk this line between perjury and truth telling? And the law answers, "yes, you can." And we have assumed that is the only relevant question. But litigation cannot answer the question, "should I?" As Gregory the Great wrote more than 1400 years ago, "we are lost by what is lawful."(15) The notion that the legal system is a closed one, with its own unique morality, is fundamentally corrosive.

Tyranny flourishes when words have no meaning. If truth is relative, then politicians have a field day. George Orwell illustrated this nicely in his book 1984. If we give up the prospect of finding truth, if it has no transcendent, objective, importance, then of course it can be changed. As Arthur Bloch said, "[t]he secret of success is sincerity. Once you can fake that you've got it made."(16) Or, as Groucho Marx said: "Those are my principles, and if you don't like them . . . well, I have others."(17) A reverence for truth is essential if a culture is to be able to resist manipulation.

The truth matters, whether it is getting the hard facts straight, or preserving the idea that there are certain fundamental moral verities. Just think about scientific or engineering truth. The concept that the earth is flat, that if you go to the edge, you fall off, was a debilitating falsehood. It stifled exploration. Once the truth was revealed, the western world was revolutionized, even though the world was just the same as before. In engineering, not all answers are equal. A bridge that will stand with certain correct calculations will fall if you use incorrect ones. I heard someone describe recently how he nearly died of a ruptured appendix. It had been misdiagnosed. He had been sent home from the hospital first with some medicine to calm down his stomach. When the doctors finally figured out what was going on, the appendix was about to burst. In medicine, a wrong diagnosis can be fatal.

In the same way, in our lives, and in our culture, lies can be fatal. No system of government is perfect, but consider what happens when the big lie is institutionalized. You get the former Soviet Union, or Fascist Germany. These regimes arose through the deliberate suppression of historical truth, scientific truth, and moral truth. And as Joseph Goebels realized, the bigger the lie, the more commonplace and invisible it becomes. The same was true of this country when it accepted the institution of slavery and then of segregation. It was suppressing a moral truth, that all men are created equal in God's eyes. But truth can only be suppressed for so long, as this country found out in 1860, as World War II Germany found out, and as the former Soviet Union discovered recently. Truth is a liberating, powerful force. Oliver Wendell Holmes, Senior said, truth is not fragile. It is like a football, it can be kicked around but at the end of the day it is still round and full of air.(18)

The personal cost of practicing deception is high as well. I am convinced that one of the reasons so many lawyers are unhappy with the practice of law is that they sense how disconnected it has become from objective truth and from larger issues of morality. One of the effects of deceit is that it colors our perception of everyone else's motives. We assume that others routinely do the same thing. And life gets very complicated if we don't stick to the truth. As Sir Walter Scott put it: "Oh, what a tangled web we weave, [w]hen first we practice to deceive!"(19)

How then shall we live? Ultimately, we each have to decide whether to maintain our integrity. And we can't use the adversary process as an excuse. Living in truth requires courage, particularly for younger lawyers who sometimes face pressure to cut ethical corners and are put in very awkward situations.

But I close with a modest proposal. For the next month, I propose that we take seriously the idea of truth, as a little experiment. To be completely honest in our dealings in work and outside work, even to our own detriment, so long as it does not gratuitously hurt someone else. And let's see what happens. Our own little counter-cultural protest. If we're still employed at the end of that month, I predict we will be a happier, more transparent lot. . . .

1. This speech was first delivered at the ABA Public Contracts Section Symposium in Colorado Springs, Colorado on November 6, 1998.

2. Judge Bruggink presently serves on the United States Court of Federal Claims in Washington, D.C.

3. This Week: Interview with David Kendall (ABC television broadcast, Sept. 13, 1998), available in LEXIS, News Library, ABCNEW File at *7 (under headline: Attorney Says President Did Not Commit Perjury).

4. Id., available in LEXIS, News Library, ABCNEW File, at *8.

5. Model Rules of Professional Conduct Rule 3.3 (1983). Section (a) of the rule states: "A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; . . . ."

6. The Wit and Wisdom of Abraham Lincoln as Reflected in His Briefer Letters and Speeches 52 (H. Jack Lang ed., World 1941). [waiting for interlibrary loan to confirm quotation and page number]

7. Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5, 5 (1996).

8. See James G. Blight, Red, White and Blue Blood, Wash. Post, Nov. 1, 1998, Book World at 1 (reviewing Kai Bird, The Color of Truth: McGeorge Bundy and William Bundy: Brothers in Arms (1998)).

9. John 18:38.

10. See Roger Kimball, Greece for the Greeks: History Is Not Bunk, Wall St. J., Feb. 14, 1996, at A12 (reviewing Mary Lefkowitz, Not Out of Africa: How Afrocentrism Became an Excuse to Teach Myth as History (1996)).

11. See id. (recounting Lefkowitz, Not Out of Africa 2-3).

12. See, for example, Paul T. Wangerin, Damages for Reliance Across the Spectrum of Law: Of Blind Men and Legal Elephants, 72 Iowa L. Rev. 47, 47 (1986) for a discussion of this fable and its application to the law of contract damages.

13. Abraham P. Ordover, The Lawyer as Liar, 2 Am. J. of Trial Advoc. 305, 307-08 (1979).

14. Aleksandr Solzhenitzyn, Nobel Lecture in Literature 1970, ยง 6 at *9 (visited Nov. 14, 1998) <> (quoting a Russian proverb).

15. Gregory the Great, Moralium Libri, bk. v, homily 35 (c. 595).

16. [Confirmed in Webster's New World Dictionary of Quotable Definitions 548 (Eugene E. Brussell ed., 1988), but no source is cited]

17. [Listed on a Groucho Marx quotations website, but not otherwise confirmed; source is unknown]

18. See Oliver Wendell Holmes, The Professor at the Breakfast-Table 109 (new ed. 1891). The exact quotation is: "Truth is tough. It will not break, like a bubble, at a touch; nay, you may kick it about all day, like a football, and it will be round and full at evening." Id.

19. Sir Walter Scott, Marmion: A Tale of Flooden Field 617 (1808).