Legal Ethics and Reform

The Adversary System Makes Perjury Somewhat More Likely

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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