Truth, Proof and Truthiness

Don’t think I’m taken in

By stories that I’ve heard

I just read the Daily News

And swear by every word.

Barrytown  Steely Dan

Clients* think in terms of truth.

Lawyers think in terms of proof.

This thread runs through the news this week with the verdict in the Casey Anthony trial and the developments in the DSK case.   While  the process worked very much as it should work, from the lawyer’s perspective, these stories are big news because the exploitation of these cases by the mass media.    Everyone knew the truth that about Casey Anthony and Strauss-Kahn; Nancy Grace and the “perp walk” told it to us.  But when the proof was examined, in one case by a jury and the other by lawyers,  it was found wanting and flawed.  So the public perception is that justice was not served.

You don’t have to wade into the deep waters of epistemology to understand the limits of the legal process when it comes to “the search for the truth.”   Some parts of of that process, like privilege and confidentiality, are seemingly designed to hinder it, although they serve the rationale of the adversary system that the “truth” is better served by a contest between equals then an inquisition by an all-powerful magistrate.  But the view of many will be that, once againpettifoggery has allowed the guilty to remain unpunished.

Lawyers often lament that they are unloved and misunderstood by society and wonder how they can change that.  One  President of the State Bar of California even attacked that staple of Americana, the lawyer joke.  A majority of the Board of Governors wonders how anyone question their dedication to the protection of the public.  They look at the woefully weak  bill of particulars outlined by the Legislative analysis underlying the creation of Governance in the Public Interest Task Force, an analysis that includes such nonsense such the idea  that Scott Drexel was not reappointed because he was too tough on lawyer discipline,  and react with understandable anger.

Welcome to the 21st century, lawyers.  “Truthiness” has overtaken society, government and the State Bar of California as well.  The Drexel story line was a classic post hoc ergo propter hoc  fallacy: Drexel was tough on discipline, Drexel was not reappointed, therefore Drexel was not reappointed because he was tough on discipline.  As no one in the know would disclose the real reason why he was not reappointed, the legal press invented this explanation to fill the vacuum.   The fact that the discipline system began to grind to halt under his administration, as revealed by the backlog numbers, did not register;  math is hard, as Barbie once told us.  The possibility that Drexel wasn’t reappointed for reasons that could not be revealed never entered the popular imagination.  It made a good story that drew nourishment from popular stereotypes.  It felt right; it had Truthiness.

We lawyers live in a bubble where proof matters.  Increasingly, proof seems not to matter much outside of it.   Its part of the gap between us and the larger society that is large and growing;  it means trouble both for us and for them, because however much they despise us, they need us.   And we need them.   Flattering ourselves with this notion won’t help; if there ever was a time to jettison professional hubris, this would be it .  What might is re-establishing the ideal that society as a whole is our *client.   We are are not going to make it as mere “service providers.”

But they will never love us.  The compromises that our part of the process (Der Process) are necessary but hardly joyful.   They can be subtle to point of  incomprehensibility, even to us.   Process itself can take over, erasing substance to the point of absurdity (e.g. Jarndyce and Jarndyce from “Bleakhouse“).   The truth that ultimate justice in the real world sometimes means that the guilty go free is unpalatable and unacceptable to many.

But we have chosen to be part of that process, perhaps without fully realizing what we were getting ourselves into.

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