Nothing but the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth

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NOTHING BUT THE TRUTH

CRITICAL AMERICA

Richard Delgado and Jean Stefancic

GENERAL EDITORS

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Ian F. Haney López

Cultivating Intelligence: Power, Law, and the Politics of Teaching

Louise Harmon and Deborah W. Post

Privilege Revealed: How Invisible Preference Undermines America

Stephanie M. Wildman with Margalynne Armstrong,

Adrienne D. Davis, and Trina Grillo

Does the Law Morally Bind the Poor? or What Good’s the Constitution When You Can’t Afford a Loaf of Bread?

R. George Wright

Hybrid: Bisexuals, Multiracials, and Other Misfits under American Law

Ruth Colker

Critical Race Feminism: A Reader

Edited by Adrien Katherine Wing

Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States

Edited by Juan F. Perea

Taxing America

Edited by Karen B. Brown and Mary Louise Fellows

Notes of a Racial Caste Baby: Color Blindness and the End of Affirmative Action

Bryan K. Fair

Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State

Stephen M. Feldman

To Be an American: Cultural Pluralism and the Rhetoric of Assimilation

Bill Ong Hing

Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America

Jody David Armour

Black and Brown in America: The Case for Cooperation

Bill Piatt

Black Rage Confronts the Law

Paul Harris

Selling Words: Free Speech in a Commercial Culture

R. George Wright

The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions

Katheryn K. Russell

The Smart Culture: Society, Intelligence, and Law

Robert L. Hayman, Jr.

Was Blind, but Now I See: White Race Consciousness and the Law

Barbara J. Flagg

The Gender Line: Men, Women, and the Law

Nancy Levit

Heretics in the Temple: Americans Who Reject the Nation’s Legal Faith

David Ray Papke

The Empire Strikes Back: Outsiders and the Struggle over Legal Education

Arthur Austin

Interracial Justice: Conflict and Reconciliation in Post–Civil Rights America

Eric K. Yamamoto

Black Men on Race, Gender, and Sexuality: A Critical Reader

Edited by Devon Carbado

When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice

Edited by Roy L. Brooks

Disoriented: Asian Americans, Law, and the Nation-State

Robert S. Chang

Rape and the Culture of the Courtroom

Andrew E. Taslitz

The Passions of Law

Edited by Susan A. Bandes

Global Critical Race Feminism: An International Reader

Edited by Adrien Katherine Wing

Law and Religion: Critical Essays

Edited by Stephen M. Feldman

Changing Race: Latinos, the Census, and the History of Ethnicity

Clara E. Rodríguez

From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement

Luke W. Cole and Sheila R. Foster

Nothing but the Truth: Why Trial Lawyers Don’t, Can’t, and Shouldn’t Have to Tell the Whole Truth

Steven Lubet

STEVEN LUBET

NOTHING BUT THE TRUTH

Why Trial Lawyers Don’t, Can’t, and Shouldn’t Have to Tell the Whole Truth

NEW YORK UNIVERSITY PRESS

New York and London

© 2001, 2002 by New York University

All rights reserved

First published in paperback in 2002.

Library of Congress Cataloging-in-Publication Data

Lubet, Steven.

Nothing but the truth : why trial lawyers don’t, can’t, and shouldn’t

have to tell the whole truth / Steven Lubet.

p. cm. — (Critical America)

Includes index.

ISBN 0-8147-5173-3 (cloth : alk. paper)

ISBN 0-8147-5174-1 (pbk. : alk. paper)

1. Law—United States.  2. Trial practice—United States.

3. Truthfulness and falsehood.   I. Title.  II. Series.

KF384.Z9 L83 2001

347.73’75—dc21               00-011952

New York University Press books are printed on acid-free paper,

and their binding materials are chosen for strength and durability.

Manufactured in the United States of America

10   9   8   7   6   5   4   3   2   1

To Natan Isaac and Sarah Nomi

CONTENTS

Acknowledgments

INTRODUCTION

Storytelling Lawyers

CHAPTER ONE

Biff and Me: Stories That Are Truer Than True

CHAPTER TWO

Edgardo Mortara: Forbidden Truths

CHAPTER THREE

John Brown: Political Truth and Consequences

CHAPTER FOUR

Wyatt Earp: Truth and Context

CHAPTER FIVE

Liberty Valance: Truth or Justice

CHAPTER SIX

Atticus Finch: Race, Class, Gender, and Truth

CHAPTER SEVEN

Sheila McGough: The Impossibility of the Whole Truth

Index

About the Author

ACKNOWLEDGMENTS

I am grateful to the following people for their comments, advice, and other input:

Kathy Abrams, Frank Adams, Ann Althouse, Adnan Arain, Mary Becker, Bruce Boyer, Christopher Bracey, Robert Burns, Paul Carrington, Louis DeCaro, Richard Delgado, Kathryn Doi, Paul Finkelman, Nabil Foster, Monroe Freedman, Despina Papazoglou Gimbel, Alan Gless, Philip Hamburger, Alicia Hawley, Timothy Hoff, Wythe Holt, David Kertzer, Jane Larson, Niko Pfund, Jeffrey Rice, Dorothy Roberts, Alex Rose, James Simeri, Rayman Solomon, William Springer, Jean Stefancic, Piper Taggert, Timothy Terrell, Paulette Van Zant, Marianne Wesson, David Winters, faculty workshop participants at Northwestern University, the University of Alabama, the University of Iowa, and the University of Colorado, and the students in my Lawyer-Storyteller seminar at the Northwestern University School of Law.

I am particularly indebted to Morgan Cloud (who told me why I should write this book), Linda Lipton (who showed me how to make it all fit together), and Fred Lubet (who ensured that it would all make sense).

And of course, the habitues of the Unicorn Roundtable left their own indelible stamp on this endeavor, whether they admit it or not.

This project received generous support from the Northwestern University School of Law Class of 1962 Reunion Gift Fund, which also resulted in the publication of the following articles: The Forgotten Trial of Wyatt Earp, 72 Colorado Law Review ___ (2001); John Brown’s Trial, 52 Alabama Law Review ___ (2001); The Man Who Shot Liberty Valance: Truth or Justice in the Old West, 48 UCLA Law Review ___ (2000); Murder in the Streets of Tombstone: A Legendary Theory of the Case, 27 Litigation 35 (2000); Rumpled Truth on Trial, 94 Northwestern University Law Review 627 (2000); Conflict of Interest at the O.K. Corral, 3 The Green Bag 2d 141 (2000); Reconstructing Atticus Finch, 97 Michigan Law Review 1339 (1999); Judicial Kidnaping, Then and Now: The Case of Edgardo Mortara, 93 Northwestern University Law Review 961 (1999); Moral Adventures in Narrative Lawyering, 2 The Green Bag 2d 145 (1999).

INTRODUCTION

Storytelling Lawyers

The best trial lawyers are storytellers. They take the raw and disjointed observations of witnesses and transform them into coherent and persuasive narratives. They develop compelling theories and artful themes, all the better to advance a client’s cause, whatever it might happen to be. Give me the facts, says the attorney, and I will turn them into the best possible case.

The popular image is that lawyers, and trial lawyers in particular, are cunning deceivers and misleaders, flimflam artists who use sly rhetorical skills to bamboozle witnesses, turning night into day. In this conception, lawyers tell stories only in order to seduce and beguile the hapless jurors who fall prey to the advocate’s tricks. Critics believe that the system would be better and more honest if the witnesses were simply asked to speak, without the distorting impact of lawyers’ involvement.

But that view is wrong. As the following chapters—each one describing the events of a trial—will show, lawyers often use the techniques of narrative construction to enhance the truth, not to hide it. A fully developed and well-conceived trial story may result in an account that is actually truer in many respects than the client’s uncounseled version of events, even though the narrative was adroitly structured with courtroom victory in mind.

Trial lawyers, the legal profession’s ultimate positivists, tell stories because that is what works. There is nothing intrinsically valuable about storytelling at trial, other than the fact that a logical, interesting, linear narrative has proven to be the most successful way to persuade the fact finder. If some other method worked better—opera singing, gymnastic floor exercise, emotive grunting—lawyers would adopt that approach instead.

Storytelling, however, cannot be defended merely because it is an effective device. That would justify the uncharitable, though extremely popular and certainly not irrational, view that attorneys are literary mercenaries, paid to concoct whatever tale a gullible jury is most likely to accept.

In fact, the lawyer’s art—shaping disparate statements into a single meaningful account—is not an unprincipled act of creating useful fiction. It is just the opposite. A conscientious attorney fashions a story not to hide or distort the truth, but rather to enable a client to come closer to the truth. Language is an inherently awkward and indefinite instrument for conveying exact meaning, but precision is required in courts of law. The lawyer’s storytelling seeks to employ language in the way that best communicates the client’s case, making sure that the client actually gets to say what she really means. Without the lawyer’s storytelling a client would be nearly incapable of accurately informing the judge or jury, cast adrift in a sea of ambiguity, approximation, and imprecision.

Any tool can be misused. Some lawyers spin clever fictions to assist in client fraud, just as other practitioners might devote their particular talents—computer programming, feats of strength, diplomacy, poetry—to either honorable or evil purposes. But as a baseline for lawyers, and excepting the out-and-out swindlers and thieves, storytelling is a noble pursuit.

There are three structural devices that add great power to the stories of trial lawyers: theory, theme, and frame.

A theory of the case explains what happened. It is a concise account of the facts and law, leading directly and rationally to the conclusion that the lawyer’s client should win the case. In essence, a theory completes the sentence, We win because.… In the impeachment trial of President Clinton, for example, one aspect of the defense theory was that the president’s words, even though misleading, had been legally accurate.

A theory of the case provides the necessary bridge between the potential drama of the story and the requirements of the law. A winning case theory has internal logical force, explaining why the discrete facts, however interesting (or boring) they may be, actually add up to proof that the attorney’s client is right. Popular imagination notwithstanding, a trial is truly something more than a soap opera or a sporting match. Most of all, a trial is a contest of ideas, a process in which the law is applied to the facts. And unless that link is supplied by a comprehensive theory of the case, even the most rip-roaringly exciting story may come to nothing when the verdict is returned.

Just as a case theory rests on logic, a trial theme appeals to moral force. Rather than explain why a particular verdict is dictated by the facts and the law, a theme shows why it should be entered, why it is the right thing to do. An effective theme allows the judge or jury to believe in the underlying righteousness of the verdict.

The most compelling themes invoke shared values and civic virtues—honor, duty, friendship, commitment. In a simple contract case, for example, the lawyer might say something like, This is a case about keeping promises. In a products liability case the plaintiff’s theme might be an accusation of profits over people. Such themes can be forceful as rhetorical devices, though neither has any independent legal weight. Of course it is important to keep promises, but that doesn’t mean that this particular contract was broken. And everyone is in favor of safety.

In the Clinton impeachment the House managers constantly returned to a refrain invoking the rule of law. This was a moral appeal rather than a legal or factual argument. The president either did or did not commit perjury, which either was or was not an impeachable offense. Strictly speaking, the rule of law was never an issue in the proceeding; there is no contrary side to that particular argument. In another sense, however, the rule of law had everything to do with it, since the senators could not ignore the greater social and historical implications of their decision. A jury trial works the same way. A trial theme underscores the theory of the case by showing why the desired verdict is both decent and good—as well as legally necessary.

Perhaps even more important than theory and theme is the story frame.

The trial process attempts to re-create the past, but it is an imperfect process at best. Witnesses may testify about what they saw and did. Documents and physical objects may be placed in evidence. Experts may provide relevant opinions and conclusions. In the end, however, there is an insurmountable barrier. The fact finder—judge or juror—was not at the scene of the events. Not having been there, she cannot actually know what happened. Rather, she must ultimately deduce or suppose what happened, using not only the evidence presented but also her judgment, interpretation, common sense, and other insights. This is an inevitable feature of historical fact finding—the use of one’s experience and intuitions to deduce what must have happened.

The trial evidence allows a juror to begin creating a mental image of the events, people, locations, objects, and transactions in question. That image, however, will necessarily be incomplete, since it is beyond human capacity to describe—or absorb—all the millions of discrete details that comprise everyday life. The missing details, and inferences drawn from them, will be filled in, however, by the juror’s memory and imagination. If the accident occurred on a dark road, the juror will imagine or recall a particular dark road, filling in details consistent with that image.

That act of imagination or vision constitutes a story frame, the context in which the fact finder determines what must have happened in the circumstances described by the evidence. In the O. J. Simpson case, for example, the prosecution labored hard to create what might be called a domestic violence frame. At the very outset of the trial, prosecutors introduced evidence of Simpson’s ill treatment of his wife, his past threats, and her fear of him. The purpose of this evidence was to support the conclusion that given his jealousy, anger, and violent nature, he must have been the murderer. In contrast, the defense developed a counter-story, the police prejudice frame, intended to advance the theory that the officers must have contrived or mishandled the DNA and other evidence against Simpson.

Neither case had the benefit of direct evidence, which increased the importance of the competing frames. There were no eyewitnesses to the murder, nor was there any direct testimony that police officers had indeed monkeyed with the evidence. Instead, the jurors were asked to reach a conclusion based on an accumulation of circumstances, in light of their own judgment and past experiences. As everyone knows, the police prejudice frame proved convincing and Simpson was acquitted.

The story frame may well be the trial lawyer’s most powerful rhetorical tool, because of its extraordinary effectiveness in the battle for the fact finder’s imagination. Once a juror begins to envision events in a certain context, new information will tend to be evaluated in that same context. A thought experiment makes this point more evident.

Imagine that the defendant in a criminal case is known to be a street gang member. An image immediately springs to mind. He slouches, he is rude, he is disrespectful of the law and susceptible to peer pressure. Even if jurors do not prejudge his guilt, they will probably regard him poorly and assume that they know the answers to many questions about him. How does he dress? What sort of hours does he keep? How much does he care about school? What does he do when he hangs out with his pals? How honest is he? Does he value the rights and property of others? The answers—or at least the suppositions—are pretty obvious if the defendant is a known gang banger. The jurors will tend to look at the case in a street gang sort of way.

But now suppose that the defendant belongs to a youth club or a neighborhood association. Suddenly the image changes. He is more clean-cut, more responsible, more diligent in school, less aggressive toward strangers. His clothing, attitudes, and pastimes will all be imagined differently, simply because of the introductory description. The initial image dictates, or at least suggests, a variety of assumptions about the defendant’s attitude, conduct, and character. Jurors will begin with a different outlook if they approach the case from a youth club perspective.

These assumptions are not immutable. They can be overcome or dispelled by the evidence. But a lawyer who can engage (and maintain) the jury’s imagination will obviously start with a significant advantage. That is the power of story framing.

The development of a trial story is a creative process. The lawyer must imagine a series of alternate approaches, evaluating each one for coherence, simplicity, and persuasiveness. But take heart. An attorney is not free to choose a story simply because it will be effective. Trials are not merely confrontations between antagonistic fantasies. There is no room for lying. The theories, themes, and frames must be composed of truth.

Surveying all the available facts, counsel has to decide what to leave in and what to leave out. The story will be fashioned in equal parts through emphasis on the favorable details and elision of the nasty ones.

This means, of course, that trial lawyers do not tell the whole truth. Each side trumpets those facets of the truth that support its case, while doing everything legally possible to obscure or minimize that which is inconvenient or damaging. Is that process inherently cynical or corrupt, as critics contend? Or can it be redeemed, as lawyers insist?

The answer is that selectivity is inevitable. It is impossible to tell the whole truth, since life and experience are boundless and therefore indescribable. Every story will omit more than it includes. In the time-limited context of a trial, especially in the days of the famously vanishing Generation X attention span, streamlining is essential. As Marianne Wesson puts it, Any witness who swears to tell the whole truth has just told his first lie.¹

And there is more to it than that. The whole truth may be metaphysically honest, but nonetheless misleading and untrustworthy. For example, a criminal defendant might belong to a street gang, but still be innocent of the crime. Understanding what we do about story framing (and prejudice), are not justice and fairness actually served by excluding that feature of the whole truth? An abridgement, in fact, may be more accurate, as it removes distractions and misleading complications. The whole truth, in fact, may create a false impression.

Alas, one side’s false impression is bound to be the other side’s gospel, but that is inherent in the human condition—a phenomenon long predating the practice of law. In response, we have devised an adversary system designed to sort out competing claims to accuracy and justice.

For lawyers, then, virtue lies in presenting nothing but the truth. This point can be illustrated—surprise!—through storytelling. The following chapters present a series of cases, some real and some fictional, some intricate and some straightforward. Each chapter explores the challenges, benefits, and complexities involved in expressing the truth at trial.

Although this is a book about lawyering, the emphasis in each chapter is on the story itself, rather than on the advocacy techniques. Trials occur in rich contexts, thick with facts, personalities, inferences, and implications. A thorough appreciation of the circumstances is essential to an understanding of the attorney’s work. The more we know about the background of a case, the better we can understand the choices confronting the lawyers and other participants. And the more we can immerse ourselves in the details, the better we can recognize the challenges inherent in extracting a purposeful account of the truth from what is ultimately an unsettled and equivocal reality.

Perhaps the deepest lesson in this book is about witnesses rather than lawyers. Perceptions can be misleading. Memory is selective, indefinite, and undependable. Motives, though ever present, may be obscured and unrecognizable. Even the people who observe an event seldom know what really happened, much less are they able to recall and describe it with unfailing precision. A courtroom reconstruction, alas, is at best an approximation, a necessary—but still audacious—effort to extract a reliable conclusion from the ineffable secrets of past events.

Several of the chapters, therefore, may at first seem to be more about history than advocacy. But trials do not occur in a vacuum. Even simple cases, and certainly momentous ones, are strongly influenced by the times in which they take place. An obvious and well known illustration may be seen in the trial of O. J. Simpson. No aspect of that case, including the strategic and tactical decisions of the lawyers, can be truly understood without a thorough knowledge of southern California at the end of the twentieth century. Every aspect of the trial—from jury selection to cross-examination to final argument—was played out against a backdrop of race, celebrity, sex, drugs, domestic violence, police-community relations and general Los Angeles culture. To analyze F. Lee Bailey’s cross-examination of Detective Mark Fuhrman, for example, one would have to appreciate the history of conflict between the Los Angeles Police Department and the African American community.

We begin with Biff and Me, which introduces the general method of story reconstruction. Faced with the task of developing a legally effective narrative from a client’s disorganized and self-interested account, a lawyer must determine which facts are relevant (and helpful) and which are distractions (or worse). Based on a real incident, the Biff story imagines a series of conversations between advocate and client, aimed at both clarifying the underlying events and interpreting them in a way that can frame a successful lawsuit.

One challenge for the lawyer is to marshal the facts within a legal context. The law has its own requirements, which may or may not be evident to a layperson. The attorney’s task is to recognize and accommodate these constraints. In the Biff story, for instance, the lawyer must explain to the client that not all threats, no matter how aggressively boorish, rise to the level of a legally actionable assault. This is the mundane stuff of daily lawyering. With the applicable statute as a framework, the attorney explores the facts to see whether the client has a case. Predictably, it turns out that what is important to the client may not be so important to the law. In other words, the lawyer must winnow the whole truth into a legally meaningful account that is composed of nothing but the truth.

That same problem arises in the following chapter, the case of Edgardo Mortara, in far more tragic circumstances. In 1858 in the Italian city of Bologna, a six-year-old Jewish child was removed from his parents by the papal police. Edgardo Mortara had been secretly baptized some years earlier, and canon law therefore held that he could not be raised as a Jew. He was taken to the Vatican, where he was adopted by Pope Pius IX. His parents, Salomone and Marianna, engaged a lawyer to help them regain custody of their son. But, of course, their advocate had to operate within the extraordinary confines of the Roman Catholic Church’s legal system. At every turn, he had to circumscribe and limit his arguments, omitting the facts most important to his clients, in a desperate effort to persuade the Pope himself to reverse his earlier decision.

To be sure, there can be no criticism of a lawyer who must operate in a system where certain truths are simply forbidden to be told. But what of the lawyer who is complicit in a client’s own distortions, perhaps outright lies? That issue must be confronted in the chapter on John Brown, who gave his life in the struggle against slavery. On trial for murder and treason following the raid on Harpers Ferry, John Brown virtually reinvented himself, disavowing his violent and insurrectionary goals while claiming to have sought nothing more than the bloodless rescue of slaves. His statements at trial were palpably false, but his goal was noble—to rally the forces of abolition by becoming an admirable martyr to the cause. But may his counsel assist him in that endeavor?

The next chapter takes up the concepts of case theory and story framing while considering the forgotten trial of Wyatt Earp. Though he is remembered today as a heroic lawman, Wyatt Earp (along with his two brothers and Doc Holliday) was actually charged with murder following the legendary gunfight at the O.K. Corral. The ensuing trial lasted for nearly a month, and at times the evidence against the defendants seemed nearly overwhelming. Nonetheless, Wyatt and his colleagues were exonerated, largely because of the frontier context in which the case was decided. Defense counsel, by presenting some facts and eliding others, succeeded in framing the case as a contest between orderly society and near anarchy,