Letters

From the October 1998 issue

(Page 2 of 2)

Mr. Olson first quotes me as saying, flatly, that there was "nothing improper or unethical" in the firm's use of the so-called "Preparing for Your Deposition" document. What I actually said was that use of the document was fine, in light of the fact that clients were contemporaneously shown another document--a document that stressed telling the truth throughout, and gave over 30 examples of what it means to testify truthfully and accurately. Ironically, this second document was a photocopy of an article from "For the Defense," a publication of the insurance defense bar.

The second passage from my affidavit was quoted verbatim and without omission. It is appropriate, I said, "for a lawyer to instruct his client how to answer questions in accordance with the truth that will best serve his case." Apparently, Olson read this as a cynical nod or wink in favor of the cynical proposition that there are some "truths" that are "better" than others, and that witnesses are free to choose one of those, rather than "the" (actual) truth.

That is not an outlandish reading, but it is wrong. With virtually no time even for proofreading as we hustled off to court last October, I did not catch the punctuation error that I hereby correct by adding two commas to set off the intended parenthetical clause. It is appropriate, I should have written, "for a lawyer to instruct his client how to answer questions, in accordance with the truth, that will best serve his case." There is only one truth, Walter Olson and I agree, but there are good and not so good ways to answer questions about it.

W. William Hodes
Indianapolis, IN

Walter Olson replies: I'm glad to find Professor Hodes agreeing with me that there's an objective difference between truth and falsity and that it's wrong for lawyers to coach false testimony, but am more mystified than ever that he finds those principles consistent with his continued defense of the Baron firm. To recap: That firm has admitted it gave many clients the now-notorious 20-page memo packed with detail about what "your Baron & Budd lawyer" needs for you to testify ("It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER"). Defending itself against the scrutiny that followed these revelations, the firm has asserted that it also routinely gave clients a copy of a standard short article on depositions which says everyone should tell the truth under oath. Professor Hodes apparently views this second item as somehow canceling out the detailed instructions in the longer memo--much as if a deranged mullah, after issuing his followers plans for blowing up the World Trade Center, had sought to dodge responsibility by pointing out that he had also given them copies of the Koran, a book that includes passages enjoining wanton violence.

You could call Baron & Budd's argument on this point a fig leaf, except that fig leaves at least cover something. The 20-page memo, whose contents were specifically tailored to asbestos testimony, was filled with capital letters and vivid phrases on the need to memorize various tricky points and wait on others for cues from "your Baron & Budd lawyer" on what to remember. The second document, shortish, impersonal, and civics-textbooky, could hardly convey an urgent tone of solicitation; and as it happens, was clearly a record of the advice given by defense lawyers--in short, by the opposition in the lawsuit! If we are to read messages into the act of handing a plaintiff a pro-truth-telling reprint from "For the Defense," the message might easily be: "...and here's what the other side would prefer for people like you to do." I would not select the word ironically here.

Turning to the second passage, we might follow Hodes's explication of the last-quoted sentence and construe "in accordance with the truth" as aparenthetical clause. But notice that the rest of the sentence then fallsshort of sense. What can it mean "for a lawyer to instruct his client how to answer questions...that will best serve his case"? I suppose we're meant to restore sense by mentally inserting some entirely new phrase into the ellipsis, such as "...in ways..." It does seem to me, however, that affidavits signed by law professors shouldn't require so muchparsing and sympathetic revision to be nudged into a state of ethical coherence.

Social Responsibility

According to Brian Doherty, social forces play little, if any, role in shaping human behavior, and to declare so is merely an excuse for activist government ("Blame Society First," June). If this is true, however, then we are driven to the absurd conclusion that the explanation for the recent school massacres (Mr. Doherty's example) lies solely within the individuals who commit such acts.

Teenagers who kill do not create themselves ex nihilo. They are entirely the product of their genetic endowment, their family upbringing, and the local community and larger society which surround them. To think otherwise is to imagine that there is some independent, self-constructing force within each individual, for which there is simply no scientific evidence, commonsense appeals to "free will" notwithstanding.

Doherty is driven by the libertarian ideology of personal autonomy into denying the obvious: that teen shootings are made more likely by a host of factors, including the availability of guns, increasingly violent media images, and declining support for counseling services in schools. The reason that only a few teens end up actually killing is explained not by appealing to some self-generated fault but by analyzing the rare but deadly interaction of inherited dispositions, family dynamics, peer influences, and cultural messages.

Some, like Doherty, worry that such explanations undercut moral accountability. But knowing exactly why people behave the way they do doesn't obviate judgments of good and bad, nor does it undercut justifications for sanctions against individuals who transgress. After all, we still must protect society, incapacitate offenders, rehabilitate them when possible, and deter those with criminal intent. As criminologist James Q. Wilson remarks in his book Moral Judgment, "Nor is the reason we assign responsibility for...actions that the law rests, of necessity, on a convenient fiction, that of free will, and could not operate if it did not embrace that myth. A legal system and the society it sustains could not long endure if they depended, at their root, on mere fiction."

Doherty says that "real change is both needed and possible--in the choices individuals make," but such choices will change for the better only if the conditions which produce them change first.

Thomas W. Clark
Research Associate
Health and Addictions Research Inc.
Boston, MA

Brian Doherty replies: If Mr. Clark can actually, through the magic of "analyzing the rare but deadly interaction of inherited dispositions, family dynamics, peer influences, and cultural messages," come up with a rigorous science that can explain and predict human behavior that has no room for the most basic reality that human beings can choose what to do at any given moment, he will have done something that no sociologist has ever done, or, I maintain, ever can do, Isaac Asimov's Hari Seldon aside.

Mr. Clark of "Health and Addiction Research Inc." is one of the "experts" I discussed in my editorial, who refuse to acknowledge choice's role in human affairs because it lessens the value of the complicated "weighing of factors" they indulge in while ignoring the factor that makes the ultimate difference in what behavior an individual human actually engages in. I do not deny that certain human choices are made more likely by a variety of environmental factors; I do deny that those factors in and of themselves, with no recourse to human choice, can come to a final and predictable explanation of what behaviors humans will and won't commit.