Obsessed by Truth

How many people who are not lawyers can appreciate the lawyer’s feelings in the following scenario?

He represents a man appealing his conviction for robbery. He’s made his ten-minute pitch, which is all he was allowed, and now he sits as the Assistant District Attorney makes his. One of the five justices before them asks a question for which the ADA is unprepared. The defense lawyer, anxious that all the facts come before the court, stands and volunteers the information. The Justice promptly and harshly reprimands him for interrupting. The defense lawyer knows his face has turned alert-level red as he sits back down.

That defense lawyer was me, a 26- or 27-year-old at the New York State appellate court known as the First Department, in Manhattan. When the prosecutor’s time was up, knowing my face dramatized my humiliation, I turned around and walked down the aisle in a room full the lawyers awaiting their turns at the podium and no doubt asking themselves who allowed in this clueless neophyte. I thought I’d never reach the exit.

It was mid- to late afternoon. Keeping a prior commitment, I took the subway to see a friend who lived seventy blocks north on the Upper East Side. The excruciating courtroom moment replayed itself in my head all the way there and then kept distracting me from enjoying the visit. How could I have been so naïve, so stupid? Even now, more than forty years later, that fiasco will return to me in a wave of shame.

Given that my motive was to aid the court, why was I wrong? For one thing, it was the prosecutor’s time, not mine. Furthermore, I might have caused him more embarrassment by providing the court with the answer than if I’d let his ignorance go unchecked. He might have had a good explanation for his memory lapse or some other point to distract the court’s focus on it. Beyond that, it’s possible the justice asking the question had in mind a strategy that I disrupted. It might even have been a line of questioning with a favorable outcome for my client. Thankfully, that wasn’t the case; had it been, the penalty would have been far graver than embarrassment. Nevertheless, my poor judgment was a violation of appellate court decorum, not just a lapse in etiquette. I’d put my notion of truth ahead of sound courtroom practice developed over centuries.

I knew better. Four years earlier, during my internship with the Minnesota Solicitor-General’s office, I’d been assigned to write the brief on behalf of the state against a man who wanted to change his name to a number, 1069. He’d already tried to do so in North Dakota, where the courts rejected his demand on the grounds that the dictionary didn’t define a name as a number. I found this argument spurious. Definitions are fluid, changing generation by generation, sometimes even more often. Just because a number hadn’t yet been used for a person’s name didn’t mean the definition couldn’t evolve. I didn’t like the idea of a number as a name, but couldn’t see why the state should deny someone who wanted it. It was a trivial case, but trivial cases can make for bad precedent. In my draft brief for Minnesota’s Supreme Court, I argued, instead, that phone books and other data collections weren’t set up to handle numbers as names. I also wrote that using numbers for names was too reminiscent of concentration camps, as several members of the public had contended before the district court below.

Months afterwards, when I was back in law school, the office sent me copies of the final brief and the Court order. They had made the dictionary definition argument the brief’s first point, and the court relied on it when rejecting the man’s application.

The lesson? Had that office gone along with my suppression of the dictionary definition claim, they might well have sabotaged the state’s case. My job as lawyer was to win. It wasn’t to seek truth. If truth was for any participant in the process, it was the court.

As an aside, I believe the lawyers in that Minnesota office sympathized with my predicament. Around the time that they sent me the copy of the court order, they offered me a permanent position. But by then, I’d committed to settling in either Boston or New York.

My internal conflict between advocacy and my idolization of truth persisted, even after its agonizing climax in that Manhattan appeals court. Several years later, I was invited to run a different office’s mediation program. I’d found the job of litigator rewarding, but sometimes I had mixed feelings about the cases I handled. The mediators and I tried to collect all the relevant facts and bring about fair resolutions consistent with the law. The work accommodated my apparent compulsion to promote truth over all other factors. However, although the mediators resolved the vast majority of cases, we weren’t always successful, leaving an aggrieved party with a lawsuit as their only remedy.

Whether to litigate is, or should be, a terrible conundrum. Every lawyer I know tells clients that the outcome is unpredictable. In any justice system, the ultimate objective is to bring an end to disputes. While truth plays an important part, it is not in itself the objective.

My younger self believed in “the truth,” and I still do. Murder is a crime—that’s the truth—as is one country’s unprovoked attack on another. The list is long. But today, I am more conscious that truth can be elusive. No one person has a monopoly on it—not even me. The same person can see the truth one way but later see it differently. People witnessing the same event famously give inconsistent accounts. As the expression goes, the devil is in the details. Truth amounts to a Platonic ideal: something to strive for even knowing we’ll never get all the way there. It’s a painful limitation that our justice system implicitly accepts.

I still ask myself about that crushing experience in court, how could I have been so naïve, so stupid? Even so, once in a while, I feel a contrary blush of cautious pride. However misguidedly, my younger self acted on principle.