Advocacy is the job, and the truth does matter
Editor's note: This column originally appeared in 2011.
One thing that truly offends me is when people imply that one of the basic functions of practicing law is to perpetrate lies, and that lawyers are inherently dishonest.
The fact is that among the many specific tenets of ethics that we are bound to uphold as part of our profession is candor, candor to the courts and to all with whom we deal.
Undoubtedly, in many a case, be it criminal, civil, domestic or otherwise, there are at least two sides to the story, as with almost any situation. And oftentimes, two people tell different, sometimes irreconcilable versions of the supposed truth.
I have been in this situation myself on numerous occasions, where my client says one thing and someone else says another.
However, I have never had firsthand knowledge of the true facts of a dispute in a case I was handling. If that were the case, then I would be a witness in the case and could not serve as a lawyer.
And so in that situation, where there are two sides to a story, my job is to represent my client in the controversy, just like the lawyer on the other side of the case is to represent his.
This does not mean that the lawyers tell lies. We do not testify. We have no personal knowledge as to facts of the case. We only know what is being said by those who claim to.
Instead, it is our job to evaluate the evidence and assess the testimony of witnesses, and advise our clients accordingly.
Another part of our job is to consider and investigate all of the relevant factors that may make our side of the case seem more credible and consistent, try to bolster the evidence that favors our client, and try to minimize the evidence that is harmful to our case as much as possible.
Finally, our job includes coming up with legal theories and arguments as to why the evidence supports a favorable outcome of the case for our client.
Sometimes the result sought is a large damage award in favor of our client.
Sometimes the result sought is to keep the damages against our client from being excessive.
Sometimes the result sought is a conviction on a lesser offense, with less punishment than what the prosecution is seeking.
Sometimes it is a finding that the other side did not prove its case.
But please note that none of this involves lying on the part of lawyers. We are just advocating our side of a case.
Another ethical corollary to the role of a lawyer is that, not only do our rules of ethics forbid telling lies, but they also forbid letting our clients or witnesses testify falsely too. This is what we call suborning perjury, and it is a serious ethical violation.
Perhaps the best way to understand all of this is to consider what I sometimes tell prospective clients when they come to me with a dicey situation:
I don’t know what happened. I wasn’t there.
Only you know what you said, what you did and what you saw.
Whatever you tell me, I will take your word for it.
I will also tell you honestly if I think a judge or jury might be inclined to believe you, or might have a hard time buying what you have to say.
But here’s the bottom line: I will not suborn perjury. You tell me the truth. I’ll take your word for it. But don’t tell me one thing, and expect me to put you on the witness stand to testify to something else, you understand? That I won’t do.
And that is the job of a lawyer: Take a situation where you know nothing but what your prospective client tells you. Investigate the facts. Evaluate the strengths and weaknesses of your case, and the testimony and evidence of your client and witnesses. Tell your client honestly what you think.
And if you have to go to trial, then you present your evidence and testimony in the most favorable light possible, and argue as hard as you can for your client’s cause.
But, please notice that lying and suborning perjury by a lawyer are not parts of the job.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.