65. Not-False

Gene Weingarten's Below the Beltway column from the January 29 Washington Post described a new wrinkle in lawyer advertising: New Jersey lawyers writing him to encourage him to contest a speeding ticket he received in the Garden State.  (To know why Weingarten was driving through New Jersey, check out his profile of The Great Zucchini, which manages to be moving, disturbing, funny and acute all at once.)

In his January 29 column, Weingarten lets us listen in on his phone conversation with Ed, a NJ lawyer with the true NJ accent, whose fee would have exceeded the fine:

Ed: Okay, but let's say it goes to trial. They have to prove it beyond a reasonable doubt. In a utopian world, everything would go perfect, and everyone would know that, and everyone who was guilty would just plead guilty. But what if the officer got caught in a hurricane and didn't show? Then they wouldn't have a case because he couldn't show his certification as a radar operator. It would be dismissed.

Me: But if I went to trial, I would have to testify that I was going 82. I'm honest.

Ed: That's not a problem.

Me: Why?

Ed: Because then I wouldn't put you on the stand.

Fuhgeddaboudit.  I paid the ticket.

But Ed was making a perfectly valid point.  From a lawyer's point of view, what he was saying wasn't even remotely sleazy.  He just meant there's a vast difference between reality, on the one hand, and the courtroom record, on the other hand.  The lawyer's job isn't to give the factfinder an accurate picture of reality.  On the contrary.

The lawyer wants to provide the picture that is (1) optimally useful to his or her client while (2) accommodating all of the facts provable by the other side.  The point is not to be true, but to be not-false. 

One of the subtler  effects of the litigiousness of American society is the way in which the courtroom ethos has permeated the broader society.  In politics, the standard of not-false has almost totally displaced any concept of truth or honor. 

Some years ago, during that brief period in which he was writing for the New Yorker, Michael Kinsley did a hilarious article on the Carville / Matalin match.  He wondered "how you can love someone whose values you purport to despise" and provided the answer he gleaned from the power couple's book All's Fair: "by always making the crucial, if puzzling, distinction between the individual and everything he or she stands for."  (The piece, called "True Lies," is collected in Kinsley's Big Babies.)

Most lawyers make a similar distinction in their everyday relationships with opposing lawyers.  You have to.  Otherwise you'd hate them.  The other side's closing argument is full of half-truths, unwarranted speculation, absurd inferences - but, hey, that's their job.  This is nothing new: Henry Fielding, the magistrate/novelist, was ridiculing the courtroom displacement of "true" with "not-false" two and a half centuries ago in Joseph Andrews (book II, chapter 3).

(The true believers are the ones who really do hate the other side.  I once served on a committee with a public defender who started visibly every time I spoke to her:  "How are you?" "Hunh! - Oh.  Okay."  Picture poor Dracula, trying to pass the time at the Department of Motor Vehicles by striking up a conversation with the person behind him in line.)

When two lawyers each present half the story, the jury theoretically gets to hear the whole thing.  It's when judges embrace the not-false standard in their opinions, and their evidentiary rulings, that things start to go seriously wrong.