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March|April 2004
Not So Bon Voyage By John Swansburg
World Wide Water Cooler By Charles Duhigg
Taken to the Cleaners By Katharine Mieszkowski
The Prudent Jurist By Stephen Gillers
Cases & Controversies
The Shawshank Reputation By John Swansburg

The Prudent Jurist

By Stephen Gillers

Paul Midgett was prosecuted for robbing a bank and setting a man on fire. He said that someone else had committed the crimes while he slept in a drug-induced stupor nearby. Midgett's lawyer didn't believe him and threatened to withdraw if he took the stand. What should a lawyer do if he suspects his client is lying to him?

THIS IS A CLASSIC QUANDARY IN LEGAL ETHICS. A defense lawyer's job is to defend, not judge, his client. The lawyer may disbelieve the client, but it's for the jury, not the lawyer, to reach a verdict. At the same time, no lawyer may knowingly let a witness, even the accused, testify falsely. That's suborning perjury. Further complicating matters is the fact that a criminal defendant, unlike any other litigant, has a constitutional right to testify even if his lawyer doesn't believe him or thinks it's tactically foolish.

Courts have devised solutions for situations in which these postulates clash. Many courts say that if the lawyer knows the client will lie, the lawyer can refuse to let him testify. That won't violate the client's rights, the thinking goes, because no one has a right to lie under oath. But knowledge is a high standard. Strong belief is not enough. Reversing Midgett's conviction, the Fourth Circuit ruled that Midgett's lawyer lacked knowledge and should have let Midgett present his testimony, which the court characterized as the "'mystery man did it' defense."

Other courts have given yet more deference to a defendant's desire to testify. Even when the lawyer knows that the client will lie, these courts have held, the client may still officer narrative testimony. He can tell the jury his story without the lawyer's helping by asking questions. The lawyer is not allowed to refer to the false testimony during summation. This option is not very attractive to defendants.

Unfortunately, both of these approaches can encourage lawyers to avoid their obligation to fully investigate a case. A lawyer may try not to learn too much in order to avoid the constraints that come with knowledge. But a lawyer's ignorance can hurt the defendant. That may explain why courts have set the knowledge standard so high. They prefer to leave the lawyer free to advocate, letting the jury be the "lie detector" in the courtroom.

Several nonprofits have filed a complaint with the Virginia State Bar against Elaine Jones, the president of the NAACP Legal Defense and Education Fund, for allegedly manipulating the outcome of a case challenging affirmative action practices at the University of Michigan. Jones urged Senator Edward Kennedy in 2002 to delay action on nominees to the Sixth Circuit Court of Appeals because, she suggested, the Sixth Circuit would uphold the affirmative action program. Was Jones in the wrong?

EVEN ASSUMING THAT THE CHARGE IS TRUE, Elaine Jones broke no ethical rule I've ever heard of. That "forum shopping is as American as apple pie" may be one of the few observations Alexis de Tocqueville did not make about the United States, but he might have if he had stayed around longer.

Every lawyer knows that who wins in court can depend on who's on the bench. A lawyer with a choice of courts who fails to evaluate the profiles of their judges is probably disserving the client. Justice may be blind, but judges do have differing judicial philosophies.

Nor can Jones be criticized under any other standard of professional behavior. What she allegedly did is a lot less manipulative than advocating for or against a particular Supreme Court nominee. When the president nominates a justice, proponents and opponents of confirmation focus on how they think the nominee will vote on issues they care about, like civil rights, reproductive freedom, and the death penalty. (Real insiders get to influence the nomination itself.) Those efforts can have consequences more far-reaching than whatever Jones did to delay a few circuit confirmations pending a decision in the Michigan cases.

Judge Alexander Lehrer awarded $3 million to a plaintiff who was left impotent after a daylong erection brought on by his treatment at the Male Sexual Dysfunction Institute. A New Jersey appellate court ordered the judge to reduce the verdict, which he did—by one penny. The appeals court then took Lehrer off the case. Should it have?

YES! TO PUT IT MILDLY, Judge Lehrer dissed the appeals court. No wonder it lost confidence in him and removed him from the case.

The appeals court found the $3 million jury verdict "disproportionate" and said it "shock[ed] the court's conscience." It ordered a new trial on damages, but it also encouraged Lehrer to offer the plaintiff the alternative of accepting "the highest figure that could be supported by the evidence." Lehrer's job was to compute and explain that figure. Instead, he remarked that he "didn't think the $3 million was enough" and reduced the award by a penny. But if $3 million was legally excessive, so was $2,999,999.99, as the judge surely recognized.

Lehrer ignored the law. The legal system depends on lower-court judges obeying higher courts, just as it depends on litigants obeying judges.

Stephen Gillers teaches legal ethics at New York University School of Law.

Questions for the Prudent Jurist can be sent to

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