The average person is relatively honest. Why do we create rules that force otherwise honest people to lie?
We do this to many people. Think first about physicians.
For some reason, New Mom and Baby should spend one extra night at the hospital. Mom and Baby are doing fine, but the doctor sees a reason for one more night of rest. What does Doc do?
The insurance company won’t pay for, and Mom can’t afford, an extra night at the hospital, so Doc lies: He falsely notes that Baby is “jaundiced,” which justifies the necessary night at the hospital. The rules have turned Doc into a liar.
I’m sure that’s just the start of what the insurance bureaucracy does to turn honest physicians into routine liars. But I’m thinking today of rules that turn perfectly honest lawyers into liars. Once you start thinking about it, you’ll come up with endless examples . . .
First, the Supreme Court ruled (perhaps entirely correctly) that a lawyer cannot strike a prospective juror based on the juror’s race. If there’s a suspicion that a challenge is race-based (and, whether we care to admit it or not, many are), then the lawyer can be asked why he struck the juror. What’s the lawyer to do?
The lawyer won’t think twice: Lie. The lawyer will gin up some non-race-based reason for having stricken the juror, put on his honest face, and tell the judge the false — but non-race-based — reason for striking the juror.
Remarkably, this becomes completely ingrained in lawyers. I once asked an old-timer: “Doesn’t it bother you to have to lie to judges when you’re forced to explain why you struck African American jurors?”
The old-timer didn’t even understand what I was saying: “That’s no problem at all! You just tell the judge that you didn’t like the juror’s belt! There’s always a non-race-based justification for striking jurors.”
Right — the need to lie has become so ingrained that you don’t even realize you’re doing it. And the lie certainly doesn’t seem to trouble your conscience.
Here’s a second example of a rule that turns lawyers into liars. Some state court systems give parties the right to disqualify a trial judge almost as a matter of right. You draw Judge Slow, realize that you need a quick decision in your case, and exercise your right to disqualify the judge. But the disqualification form (in at least some states) forces counsel to lie: Counsel must swear that counsel is disqualifying the judge because the judge is biased against the client. That often is not true. But the form forces the lawyer to lie, which he obediently does.
Unfortunately, I’m just getting warmed up here. What about judges who ask counsel at settlement conferences: “What is your maximum (or minimum) settlement authority?” If counsel answers honestly, she’s lost all bargaining leverage. What’s a lawyer to do? Tell the judge she can’t answer the question, and get berated for a half hour? Or lie?
What about judges who ask client representatives at settlement conferences whether they have “full settlement authority”? If “full” means “the capacity to spend an infinite amount of the company’s money without first making a phone call to chat with someone else,” then the client representative probably doesn’t have that kind of authority. How should the client representative answer the judge’s question? Mentally define the word “full” to mean something slightly more convenient? Or lie?
These last two problems — of judges asking the wrong questions — could be solved if judges simply became a little more sensitive: Don’t ask the questions. The answer to the judicial disqualification issue is also relatively easy: If your state is inclined to give parties the right to strike one judge, then give them that right — period. Don’t force counsel to provide a reason, and you’ve eliminated the mandatory perjury.
I’m not sure what the answer is to the Batson (peremptory challenges of jurors) problem. Some would say that courts should eliminate peremptory challenges entirely, excusing potential jurors who are disqualified for cause and then seating the rest. That seems a bit extreme; perhaps there’s some other, less radical solution. In any event, however, we should strive to eliminate rules that turn lawyers into liars.
When Rudy Giuliani was the mayor of New York, he cracked down on small crimes — littering, jaywalking, and the rest — and seemingly reduced all crime in the city. Maybe we could do the same in the law: Stop forcing lawyers to lie as a part of their jobs, and maybe lawyers would generally become more honest players.
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].