Customer Reviews

Nothing but the Truth: Why Trial Lawyers Don't, Can't, and Shouldn't Have to Tell the Whole Truth

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I work in a large law office. All of my colleagues know that many of our most effective trial lawyers are the ones who tell the best stories. As Steven Lubet points out in his cleverly written book, this does not refer to creating a story out of thin air. Rather, it deals with presenting a case to a judge or jury in a way that best represents the client's true position. Through both fictional and real-life examples, the author discusses the inherent difficulties and potential problems a lawyer may have in presenting every single aspect of a client's background. After all, it's not the job of one side's lawyer to do the opposing lawyer's work. But when an attorney presents a truthful account of the client's position in a manner that the court or jury can clearly understand, the likelihood that a particular case may wind up with a just result increases. Lubet's examples include John Brown at Harper's Ferry, Wyatt Earp at the O.K. Corral and Atticus Finch in "To Kill a Mockingbird," -- great stories in themselves, memorable and instructive to lawyer and non-lawyer alike.

Steven Lubet's new book presents seven entertaining and thought-provoking essays on how lawyers tell their clients' stories in trials. The book is bound to appeal to lawyers, but it deserves to be a hit among the general public too. It is admirably written -- concise, clear, fair-minded, free of legal jargon, and often funny.

Lubet starts with "Bif and Me," inspired by an airport incident. A man angrily told Lubet that he had sat down in a seat the man was reserving for his father. Lubet prepared to move, but as the man continued his aggressive behavior, Lubet made the mistake of saying, "Hold on a minute, mister." The man said, "Don't piss me off" and shook his fist at him, whereupon Lubet skedaddled. Lubet imagines what would have happened if he had consulted a lawyer about suing "Biff" for assault, the legal term for a threat that puts someone in reasonable apprehension of imminent bodily harm. Lubet explains how his own lawyer would have framed the story, then shows how Biff's lawyer would have framed a very different story by picking and choosing from the same evidence. The result, says Lubet, would have been two competing stories, both of them legitimately grounded in the true facts of what happened, but emphasizing different subsets of those facts.

The humor of "Biff and Me" abruptly gives way to the tragedy of the Mortaras, a Jewish family living in the Papal States. In 1853, a Christian domestic servant secretly sprinkled water on one-year-old Edgardo Mortara, uttered the phrases of baptism, and thereby under canon law rendered him a Christian. When they discovered this secret baptism, Vatican authorities raided the Mortaras' house, seized Edgardo, and permanently removed him from his parents' custody, since canon law forbade Christians to be raised by Jews. The parents hired lawyers to frame an appeal to the Pope under the canon law. The appeal failed, although the case stirred international outrage against the Church. Lubet adds a new dimension to this familiar story by focusing on how the law limits the freedom lawyers have in framing their clients' stories. While most people today regard the case as one of kidnapping, no lawyer in the Papal States in 1858 could have framed the story that way. The Mortaras'lawyers had to resort to technicalities challenging the validity of the baptism and other similarly hopeless tactics.

"John Brown" raises troubling questions of whether lawyers may condone lying by their client in the name of an ultimately just cause. John Brown was tried by Virginia for sedition after his failed raid on Harpers Ferry. As in the Mortara case, the outcome was a foregone conclusion. Knowing this, Brown and his lawyers used the trial to present a story to the country at large about the heroic battle of a peaceloving man against the evils of slavery. The peaceloving part was false, and his lawyers knew it. They helped Brown suppress the truth about his real plans for the raid and about his callous disregard for human life during the raid and throughout his abolitionist career.

"Wyatt Earp" dissects the hearing held in 1881 to determine whether Earp and his companions would be tried for murder after they shot three rivals in the "Gunfight at the OK Corral." Lubet uses this trial to pursue his ideas on the importance of "case theory" and "story framing" in trials.

Lubet next turns to fiction to explore the ethical limits on lawyers as they frame a story that will enable their clients to win the case. In "Liberty Valance," Lubet reinvents the movie "The Man Who Shot Liberty Valance," imagining what would have happened if a prosecutor had decided to indict the hero, Ransome Stoddard, for murdering Liberty Valance. In "Atticus Finch," Lubet retells the story of "To Kill a Mockingbird" by assuming that the accused black man, Tom Robinson, really did rape Mayella Ewell, his white accuser. If so, was Atticus Finch's bare-knuckles attack on Mayella at the trial within the bounds of proper legal advocacy?

Lubet believes that the adversary trial, and the role lawyers play in it, deserve our respect, and that the framing by lawyers of competing stories in such trials is not only inevitable, but a good thing. Not everyone agrees. In a 1999 book, the journalist Janet Malcolm analyzed the case of Sheila McGough, who was convicted of helping her client defraud a number of companies. Malcolm believes that McGough was innocent. She argues that a miscarriage of justice resulted from McGough's stubborn refusal to play the duelling-stories game that characterizes trials. Lubet disagrees. In "Sheila McGough," he asserts that McGough's downfall resulted not from her respect for the truth but from misguided decisions that prevented the jury from hearing the evidence it needed to sort out the truth. Lubet demurs on whether he believes McGough was guilty, but he clearly believes that if she was innocent, her best chance would have been to let her lawyers do what good trial lawyers do: frame a convincing story through a selective but entirely ethical arranging and presentation of the evidence.

This sketch cannot do justice to the worth of Lubet's book. Trials are important. We resolve great issues and small through them. Yet the adversary trial is an ancient, clumsy, expensive, histrionic device for determining the truth. It relies heavily on lawyers paid to tell stories that favor their client, whatever the real truth may be. As a trial lawyer, I often feel uneasy about whether my trials have arrived at the truth. Many people confidently assert that there must be a better way. Maybe there is. But after reading Lubet's book, I doubt it.

This is a wonderful and delightful book. It contains very enjoyable, digestible, especially well-written, insightful and highly instructive discussions of six real, or almost real or at least fabled or fancied, well-known "cases" from the vantage point and context of the formulation of "stories". These are developed in the context of trial preparation and presentation. The ever-present subtext is "truth," open-textured, informed by and very susceptible to strategy, bias and device.

The development has far wider applicability beyond the strictly "legal," extending to all forms of persuasion. In addition to its very clear value in and relevance to the legal arena-at-large, including advocacy, this book will be of considerable interest to those practitioners of "theory", philosophy, ethics, language and communication, among other intellectual pursuits and disciplines. The introduction and concluding chapters encapsulate and position the text well.

The astute, conscientious and imaginative reader will be amply rewarded with heightened insight into the role of story-telling as a perennial current pervading not only much of Anglo-American jurisprudence, but also everyday forms of human "intercourse", including "he said, she said" conversations, journalism and the media, fundraising, advertising, the pulpit and all forms of persuasive or advocatory writing and discourse.

Lubet's book was well written, entertaining and thought-provoking. As a non-lawyer, I have a deeper perspective on what attorneys do to tell their story.

My purpose for reading this book was to approach storytelling for marketing from a perspective outside of typical business books. I got a few ideas, but not as much as I hoped. The book would have benefited from a summary chapter that would tie together the messages from each chapter.

My guess is that the closer you are to the law, your return on the time spent with this book will increase.

Steven Lubet seeks to defend the art of "storytelling" at trial against the charge that it inevitably leads lawyers to spin creative fictions designed to obscure the truth and hoodwink gullible juries into favoring their clients. At least, that's what Lubet says he's doing (p. 2), and indeed, the first chapter does illustrate how lawyers can legitimately and honestly help their clients frame stories and select facts so that their testimony falls within the appropriate legal framework. The really interesting point in this first story (which Lubet does not dwell on) is that both sides can essentially agree on all of the "hard" facts, but have completely different stories about what those facts mean. This, to me, could be the springboard to a really fascinating discussion about what it means to tell the truth, but Lubet quickly passes on to his next story.

What this book really amounts to is a retelling of a number of interesting trials or other legal proceedings (the Mortara case, the real trials of John Brown, Wyatt Earp and Sheila McGough, the literary trial of Tom in "To Kill a Mockingbird," and Lubet's imagined trial of the man who shot Liberty Valance). The stories themselves are entertaining; Lubet does a particularly good job of placing the Brown and Earp trials in their historical context. His observations about strategy and storytelling in the Earp trial, and his defense of Atticus Finch's obligation to defend Tom even if Tom was guilty are pointed and entirely successful. On the other hand, in a book about telling the truth, Lubet completely fails to notice (much less to discuss) the larger implications for "the truth" of some of the other values that we have built into our criminal trials -- the presumption of innocence, the privilege against self-incrimination and the prosecution's burden of proof beyond a reasonable doubt.

"Nothing But The Truth" is a fast and entertaining read for lawyers and non-lawyers, and will give non-lawyers some insight into how trial lawyers put their cases together. Trial lawyers can read it for the war stories, but won't get much more out of it.