In Civil Litigation

I was mostly a fan of Rudy Giuliani when he was the mayor of New York.  I liked his no-nonsense style and discipline.

But as a lawyer, at least as the president’s lawyer, he’s ridiculous.  And he shows no discipline at all. 

He has joined the ranks of many 21st century lawyers who believe that it’s the lawyer’s role to further obscure the already blurred dimension between TV, reality, and political pandering.  He talks too much and too frequently to the media and makes himself and his client look foolish.

BUT, although he didn’t get the wording right on “Meet the Press” yesterday, when he cryptically stated, “the truth isn’t the truth”, he’s right about what he meant to say, which is the following:

The truth is not one-sided.

In the course of authentically intelligent, diligent representation, there is simply no such thing as accepting statements, assertions and alleged evidence produced by the opposition as “truth”.

This isn’t a philosophical discussion between college students lounging in a meadow.  This is life and death in the Colosseum and there are lions everywhere. 

Arriving at what is as close to the final truth destination as we can, requires advocacy that is an ironic but powerful balance between confidence and humility.

A lawyer has to be confident to understand that their role is exactly equal in authority and power to the role played by the opposition: whether it’s a state’s attorney, a U.S. attorney or an attorney for a large insurer or corporation.  This means that every question is asked and every minute aspect of a case is analyzed from every possible angle.

It means having the confidence to continually press forward.

However, a lawyer has to temper confidence with the humility of understanding that absolutely nobody possesses total command of the truth.  There will be surprises, new evidence, witness inconsistencies and changes of every variety on the battlefield for truth.

Nowhere is the argument more complex over what is true than the attempt to discover someone’s intent. 

This is where the president, Rudy Giuliani, and the targets of Robert Mueller’s special investigation need to be very concerned and very careful.  And this is where arrogance, sometimes called “hubris”, is lethal.

Because the “truth” about intent is very frequently a matter of interpretation; in trial it is a matter for juries to infer from testimony and other evidence.  This is one of the reasons why experienced lawyers very rarely advise clients to subject themselves to interviews by law enforcement, opposition attorneys, or insurance company representatives.

It’s very disturbing that despite the profound protection provided by the U.S. Constitution against self-incrimination, the terrible misperception pervades society and law enforcement that someone must be guilty if they refuse to speak to police; or in the case of the president, Special Counsel Robert  Mueller.  It’s the right of the most disenfranchised and disadvantaged and the right of the president of the United States.

It doesn’t matter if you’re a democrat, republican, independent, or you’re decorated with any other polka dot or stripe.  And it doesn’t matter whether you favor the president or not.

What matters is that we understand that truth is not one-sided. 

What also matters is that your law firm has the experience, determination, energy, resources and intelligence to mine the truth and that it fights your fight where it must be fought.

It takes a great deal of work to reach the truth and it doesn’t happen on TV.