Lawyers Or Liars: Should Lawyers Be Allowed To Hide The Truth?

The modern judicial system allows lawyers the privilege of not disclosing the truth, and in the process, allows them to consciously misleading the courts. Practically, this is a license for obstructing justice and profiteering from it. If the objective of State, Laws, Courts and Lawyers is the discovery of truth and delivery of justice, then perhaps, there is a need to ensure that everyone, including the lawyers, only works for the fulfillment of this objective.
Lawyers or Liars: Should Lawyers be allowed to hide the Truth?
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If Courts are meant to identify the truth and the lawyers are supposed to assist the courts in performing its duties, how justifiable is it for a lawyer to hide that truth from the Court and actually mislead it into believing something that may not be true. Should a lawyer be accorded such privilege of misleading the world, just because he has been hired by the person who may be adversely affected by the disclosure of those facts? Is his so-called ‘fiduciary relationship’ sufficient justification to hide the truth and prevent justice, or is just a rule make the lawyers

for the benefit of their fraternity … and at immense cost to the society as a whole…!

 

Modern Court Procedure:  A Game for Ascendancy

The modern court procedure, which evolved in Europe and is practiced all over the world today, is based on evidence, which must necessarily be produced by the party trying to make a point. In the absence of evidence that would establish the fact, the court concludes that the claim is unproved and the benefit goes to the other side. While judicial activism is not unheard of, in the common law countries at least, the judge is usually neutral in the adversarial proceedings before him, like a referee watching a game of tennis or judging a dance competition and awarding points to the person who performs better!

Unfortunately, a game of tennis or a dance competition is not won or lost at the cost of truth and justice, as can happen in a court case!

Better Courtroom performance Wins but Truth and Justice are Defeated

A very important reason why truth often becomes a casualty in the courtroom is because what often matters there is not what the truth may be, but which of the two lawyers was better equipped in the art of courtroom procedure, in elaboration of their stories and the eloquence with which they were able to put their arguments before the court.

Is it not surprising that in each and every case, there are two lawyers trying to prove the opposite, while the whole world watches, like spectators witnessing a performance, knowing very well that in each case, there is only one truth. Yet, we are all convinced that each of the lawyers, who is trying to prove something that the other is trying to disprove, is within his ethical rights of defending his client. In fact, enabling the two sides to compete and thereby showcase their professional competence in this adversarial game almost seems to be more important than the real purpose for which the courts, the lawyers and the whole judicial system exists – to find the truth and deliver justice.

In such a scenario, a lawyer, even when he knows the truth, is not even expected to disclose it or share it with the Court. Such a disclosure would be against professional ethics. Even when he knows otherwise, he must continue to defend his client and prove something that


he knows is not true. Of course, he does it not by acts of commission, but by acts of omission – he omits truth from his discourse!

It is difficult to understand how a system that gives the main actors a right to indulge in blatant falsehood, even if by an act of omission, can ever hope to ensure that the truth is invariably unearthed. If lawyers have a right to lie, how can the court, which depends on them to help it identify the truth, hope to succeed? In all this, truth can be the biggest casualty and public interest can immensely suffer.

Is Truth Important ? Should it prevail ?

Magna est veritas, et prevalebit” literally means “Truth is mighty, and it shall prevail”.

None can doubt that the elaborate court procedure followed these days evolved only to ensure that the judges can find the truth. Then how come the courts became subordinated to its craft, and truth became the casualty?

Probably, and one can only guess, the dominance of craft over courts is a result of professional fraternity that compromised intellectual integrity in favor of professional convenience. The judges and lawyers, all belong to the same profession – virtually and literally. In most courts, the judges are the ones who were lawyers at some point of time. They follow what they have always practiced and observed, and if that includes a license for lying, so be it. If that was not enough, most of the modern laws that govern court procedure are also made by lawyers, who seem to have consciously ensured that the law remains on the side of lawyers, even when they lie or hide the truth, instead of taking the side of the truth, as it ought to be.

Do we need to change it all ?

We need to think about whether such a blatant license to lie, that the lawyers currently enjoy, is justified or not. If we value truth and want that it should be unearthed with a greater frequency than what happens today, we must put an end to the farcical competitive performance of court-craft skills that form the judicial rituals today and replace it with a responsibility on one and all, including the lawyers, to find the truth. In a court of law, no one should defend anybody. Instead, everybody must defend the truth. If that happens, truth will not be compromised with the frequency it might be getting crucified today.

Lawyers must facilitate the objectives of law, and not be licensed to circumvent it for their own benefit.



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