I’ve been a practicing lawyer for more than twenty years. My legal briefs are pretty much like my blog writing: I develop an argument, and support it with facts (or, in the case of a legal brief, legal cites) that are directly on point. Often, to show my honesty to the court, I’ll make a summary factual or legal assertion, and then follow that with a quote from the original source confirming the truth of my summary. In a long brief, the court learns that it can trust my summaries without having to strain its eyes or take its time to read the lengthy underlying source material.
Early on, I came across a type of lawyer, the type I characterize as a “bottom feeder,” who has a very different approach. In a single, often surprisingly short, sentence, the bottom feeder will advance several factual or legal lies. He then follows this single sentence with ten or twenty cites to the record and the law, all of which, he implies, actually supported his assertions. A paragraph from a bottom feeder brief might read something like this:
Defendant, by admitting that he struck his wife on repeated occasions with a knife, violated multiple California authorities regarding assault with a a lethal weapon. See Defendant’s Deposition Transcript (“Def. Depo. Trans.”) at 57:22, 83:1-8, 92:3-105:7; Joe Smith’s Deposition Transcript (“Smith Depo. Trans.”) at 101:3-23; Jane Blank’s Deposition Transcript (“Blank Depo. Trans.”) at 45:6-7, 120:8-12; Exhs. A, T, J, 7, 99 and 102; Calif. Crim. Code secs. 82, 83, 97 et seq.; Doe v. Doe (2000) 100 Calif. Ct. Case 200, 201; Smith v. Smith (1889) 3 Nev. Ct. Case 7, 10; Brown v. Brown (1943) 72 Mich. Ct. Case 80, 85; Black v. Black (2010) 280 Calif. Ct. Case 30, 32.
To the judge, it looks like a straightforward declarative statement. He assumes that it’s honest, because an officer of the court is advancing it, and simply glosses over all the cited authority. I, however, know that the factual spin is a total lie, because the defendant never admitted that he “struck” his wife on repeated occasions with a knife. I also know that the case and statutory authority is (a) inapplicable, because there was no intentional knife strike; and (b) wrong in any event.
The problem for me is that I cannot simply say to the court “That’s all untrue.” Instead, I have to “unpack” the lies, kind of like unpacking a zip file, which comes across your email as one file, but explodes into multiple files. My counter argument will have to read something like this:
Plaintiff has misrepresented the facts. The deposition transcripts to which he cites do not support his claim that repeatedly struck his wife with a knife. In the defendant’s own deposition, at page 83:1-8, defendant said that, while at a picnic, he had tripped and dropped a plastic knife on his wife:
Q: Did you strike your wife with a knife?
A: Well, I was walking across the grass with one of those plastic knives in my hand. The ground was bumpy. When I tripped, I dropped what I was holding, and the knife fell into my wife’s lap.
Q: What damage did it cause?
A: Damage? Uh, I don’t know. It left a little grease stain on her jeans.
Joe Smith’s deposition, at pages 101:3-23, confirms this story. He testifies that he witnessed defendant’s moment of clumsiness. The only thing that happened was “this silly little green plastic knife fell on her.” He also adds that defendant’s wife “giggled and scolded him for being a klutz.”
Plaintiff’s legal sites are equally inapplicable. First, the testimony to which he cites establishes that, contrary to the implication in plaintiff’s brief, defendant never intentionally assaulted his wife with a deadly weapon. Instead, he dropped a plastic knife in her lap. The court therefore cannot apply here any law involving assaults with a deadly weapon. Second, plaintiff’s statutory and case authority has nothing to do with assaults with deadly weapons. Instead, it involves safety standards for manufacturing plastic cutlery.
The above is a little bit exaggerated, but not much. I’ve dealt with hundreds of situations in which the opposing party’s single statement is replete with falsehoods, and his authority citations are equally dishonest. I can prove it only through extended analysis.
The honest lawyer’s problem is that, in a busy court, the judge is inclined to favor brevity. A short lie will often prevail over a detailed truth.
The situation becomes even worse if you find yourself in an activist court. Most of my work has been defense work for corporate entities, sued by disgruntled consumers or employees. In the San Francisco Bay Area, the first rule of thumb is “in a suit between an individual and a corporation, unless the individual is manifestly insane, the corporation loses.”
The individual can be a proven liar, and the law can support the corporation 100%, but the corporation loses. In the battle of the briefs — short lies supported by false facts versus detailed defenses supported by accurate law — the short, dishonest brief wins. Combine judicial overwork and laziness with ingrained bias and the outcome is predictable.
If you’ve been paying attention to the news lately, all of the above sounds familiar with you. This is because Obama, during his short tenure as a practicing attorney, was obviously a bottom feeder. His approach to speeches is to make short, declarative sentences that seamlessly blend false facts and misrepresented authority.
In attacking the Ryan budget, he consistently ignores details, and simply proclaims that it will starve old people and confine to insane asylums physically and mentally disabled children. He contends that bridges will collapse, even though he knows that the specific bridge to which he refers fell, not because of budget cuts and poor infrastructure maintenance, but because of a significant design flaw. In speech after speech, Obama calls on the bottom feeder’s arsenal, throwing around falsehoods with scattershot abandon.
Just as this is a problem for lawyers, this is a problem for Obama’s political opponents. As the honest lawyer knows, it takes three pages of truth to combat one paragraph of lies.
Worse, just as the dishonest plaintiffs in Bay Area courts are aided by activist judges, Obama is aided by a compliant press that has no interest in challenging his falsehoods. To the contrary, our 90%-liberal media is happy to broadcast those lies far and wide.
The public, bombarded by short and sweet lies, and with an MTV attention span that leaves no room for the time it takes to deconstruct those lies, buys into them. The only time they start listening is when the lies impinge directly on their own personal knowledge (as happened with George Monbiot, whose independent research finally opened his eyes).
This bottom-feeder lying technique isn’t limited to our president, of course. Some members of the drive-by media are masters of it. Andrew Breitbart recently got blind-sided by Martin Bashir’s vicious attack at his ankles. Breitbart, being a warrior, and an aware one, knew what was happening and called Bashir on his tactics. Sadly, most conservatives aren’t as aggressive or savvy as Breitbart, especially conservative politicians who just want to be everyone’s (and every voter’s) friend.
A bit of eternal wisdom is that “The truth shall set you free.” The corollary is that Obama’s and the Left’s lies are intended to enslave you, putting you in permanent thrall to Big Government’s endless demands.
Cross-posted at Bookworm Room