Wednesday, November 6, 2013

How Lawyers Handle the Truth

After I graduated from college with an English degree and no real career plans, I ended up working as a paralegal at an immigration law firm, based on an ad that sought out individuals with creative writing skills. I admit to being skeptical at first as to why creativity would be required to do legal writing; I assumed at first that the lawyer wanted someone willing to bend the truth. So I asked about this in my interview, and the lawyer (now my boss of 12 years) explained to me, with some bemusement, that creativity in legal writing means something different than what might normally be considered "creative writing."

It was only after working as a paralegal for a couple of years that I understood more fully what the lawyer's role is, and why creative thinking (more than creative writing) is required for the job. Around that same time, I decided to go to law school.

Since then, I've become more sensitive to the way the legal profession is portrayed by the media, fostering the popular (and perhaps somewhat deserved) conception of lawyers as being concerned more at getting a lot of money for their clients and/or themselves than for getting at the truth or ensuring a fair outcome. But from my day to day work in the field, I have seen another side to the story that often goes overlooked.

I recently served as a guest lecturer at a local college. The class is a survey of Professional Writing, and features guest lecturers of various professions, all of whom give the students a writing assignment typical for their field. I asked the students to draft a legal brief, and explained how it is done. I reviewed the papers when they were done, and was pleased that most of the students had properly constructed the legal argument, explaining why a fictional client, despite having been charged for theft, remained admissible to the United States. However, I later learned from the professor that the students were troubled by the assignment because they felt that the person really should not be admitted to the country, but were forced to argue otherwise.

This type of thinking, the belief that one's personal moral intuition should be trusted as a more reliable guide for the administration of justice than a formal legal system, lies at the heart of people's mistrust of lawyers.  If these same people thought about it more deeply, they would distrust the entire notion of having a legal system based on the concept of impartiality at all.

The reason the fictional client in our hypothetical case remained admissible to the U.S. is because the formal charges against her were dropped and she never was convicted of the crime. The law only makes people inadmissible to the U.S. based on crimes of which they actually were convicted or of which they admit to having committed. And for those who are convicted of crimes, only certain crimes make them inadmissible. The law provides for many exceptions. The purpose of this labyrinth of rules is to ensure that truly dangerous individuals are not allowed into the country, but to allow most otherwise-qualified people to enter the country.

A fundamental concept in determining admissibility for those with criminal convictions is that the adjudicator cannot look behind the record of conviction. In most cases, the government officer determining admissibility is only permitted to review the statute under which the alien was convicted to determine whether the crime, as defined by the statute, is one that prevents an alien from entering the country. This is an important safeguard as it ensures that rules will be applied mechanically. It also shields the adjudicator from hearing the narrative surrounding the course of events that led to the arrest and conviction; narratives can powerfully affect one's opinion of how "bad" a crime is. But allowing the officer to look at the narrative would subject the alien to a second determination on culpability for the offense, a process that should occur only once, and in the context of the criminal proceeding. The determination of admissibility to the U.S. is not a redetermination of moral culpability for a crime; it is simply a determination as to whether someone so convicted ought to be permitted to enter the U.S.

One of the foundational principles of our legal system is impartiality in the administration of justice, and this is often achieved through the control of information that is given to decision-makers. We artificially strip narratives down to relevant facts so that legal principles can be appropriately applied. While additional facts may yield a different outcome, that is often because it is based on emotions aroused by the narrative rather than by carefully considered and balanced interests.

Because lawyers' job is to package information in this calculatedly artificial manner for judges, juries, adjudicators, and the like, we are often viewed as manufacturing a false version of reality. While it is true that the version of the facts that we create is artificially stripped down, this is done for a very important reason. We shear away the facts that are not relevant to the legal issue at hand. We mine the dense narratives presented by our clients for the legal issue. Once the issue is clear, there is a very limited set of relevant facts to be presented. This may be artificial, but the alternative is to determine guilt and innocence by mob rule or by the feelings of a single or a small group of individuals bent on protecting their own interest.

The administration of justice, the finding of culpability for crimes, is never a pretty business. There are very few ways of doing it, and modern society's system, based on impartiality, may not be perfect but it safeguards individuals' liberty, ensures fairness and equality before the law, and prevents decisions based purely on emotion. It could be a lot worse.


  1. Danielle, Well Said! I am glad Tim shared your blog. I look forward to reading more of your writing. Luckily there are a few months to catch up on.