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Legal processes depend upon the truth being available to the judge
and jury. Without the truth a trial is a futile enterprise, a fair
result can't be reached. So witnesses take an oath to tell "the truth,
the whole truth and nothing but the truth". This is how it must be.
However, witnesses, including the parties to litigation, are often
times hesitant to tell the truth because of several real fears. These
include: the fear of having the facts they divulge twisted and
mischaracterized, the fear that the facts will be divulged to the world
with little or no purpose being served and with little concern for
legitimate privacy interests, and the fear that the facts might lead to
other litigation against themselves or other loved ones. Although
society can never totally alleviate these concern, society has a duty to
fully explore ways that might mitigate these concerns.
Since the facts that witnesses divulge, usually during the
discovery phase of the lawsuit, fall into the "gentle care" of the
lawyers involved in the case, it is now appropriate to look at the
lawyers' duty when conducting a lawsuit. Lawyers are not obligate to
take an oath to "at all times characterize the facts offered by
witnesses in a balanced and fair way". Lawyers are not obligated to take
an oath "to keep all facts confidential except for the facts absolutely
needed to prove their case". On the contrary, lawyers reserve unto
themselves the right to "characterize" the facts in whatever biased or
one sided way that they feel will favor their client. Lawyer reserve
unto themselves the right to introduce any and all facts into the record
at the public trial regardless of relevance.
Lawyers also reserve the right to use facts discovered in one
proceeding to hint at new lawsuits or actually pursues new lawsuits
later on. The criminal code allows a witnesses to refuse to testify
because of possible self incrimination, but in civil lawsuits that
protection is very limited or non-existent.
In day to day life, no sane human wants to even say hello to a
person who has a reputation for revealing embarrassing facts and/or
twisting facts and/or hinting at future lawsuits. Such people are
generally shunned and avoided. However, when it comes to dispute
resolution society expects normal, sane humans to "tell all" in front of
these kinds of people. The expectation is somewhat unrealistic.
The Clinton sex/perjury scandal is a most prominent recent example of
this problem writ large. Clinton was a witness who fully knew how
vulnerable his consensual acts were to mischaracterization by the Paula
Jones' attorneys. Clinton was a witness who was well aware of other
molested women around who might hire Jones' attorneys to bring more
lawsuits if the Monica information got out. Clinton was a witness who
did not want these damming facts on the public record. The President is
not a very sympathetic figure, after all he brought this largely on
himself. He had money and other resources to use to defend himself which
few other people have. Nevertheless, think of the emotions in his breast
as he faced Jones' attorneys. That he cracked, that he lied, is
certainly understandable.
The problem then is to get to the truth while providing some
modicum of protection from adverse publicity, some protection from
mischaracterizations by the attorneys arguing the case, and some limited
immunity from additional litigation. In Continental Europe, the civil
justice system uses a court appointed lawyer to gather the facts from
all parties and witnesses. That lawyer is not attached to either side of
the case. The "fact gathering" lawyer does not have an axe to grind in
the outcome. This lawyer uses his judgement and leaves unnecessary
embarrassing details out of the public record at trial. This lawyer is
not interested in using the threat of additional lawsuits to get desired
results. Since these court appointed lawyers enjoy a more benign
reputation and because their is discretion being exercised throughout,
witnesses are naturally more willing to testify fully and truthfully.
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