The Consciousness of the Litigator

5. Enforced Realism

CHAPTER FIVE Enforced Realism The litigator’s appearance and reputation as a Hired Gun are deceptive. The litigator’s interests are not coextensive with the client’s, and the litigator’s sense of right and wrong may have little or nothing to do with the client’s. Even when the litigator’s moral view is consistent with the client’s, it derives from a different source than the client or the paycheck. It derives from the work. The object of the litigator’s work and the medium of his practice are the cases, and the cases—the facts, the civil procedure, the substantive law, and their interplay—are complex. Litigation does not fabricate complexity. Litigation does not constitute a hermetically sealed world, with its own exclusive logic, experience, and moral realm. Cases are complex because the reality of social affairs is complex. First, the litigation process reveals the obscurity, contradictoriness, and ambiguity of social reality. The ambiguity may occur at the level of facts—the whowhat -when-where kinds of determinations that serve as the basis for legal consequences. It occurs also at the levels of meaning and implication: ambiguity occurs even without intentional deception by witnesses and despite the black-and-white of words printed on a page. 109  One of the things I’ve learned is that two reasonable , intelligent people can see the same set of events in a very different manner. And it is possible for two different people to tell a very different story about what’s happened, without either of them really lying. I think that people are—certainly you do run into just outright liars sometimes, and that’s unfortunate. I have been amazed at how differently two individuals can absorb the same events. And when they describe what they’ve witnessed, it comes out differently. The dif‹culty of establishing facts concerning even seemingly simple occurrences increases dramatically as the interests of the participants and observers increase. I mean, this is not anything profound, but you and I stand at the intersection and watch a car wreck, and your description could be completely different than mine, even if we’re both impartial observers. So, you become used to the fact that there is surprisingly little that is completely, clearly, and unambiguously true. Or that you can establish as that. I guess, again, it’s partly because it’s a human process. Different people perceive things in different ways, colored by their self-interest and their experiences, and so forth and so on, and so it can be surprisingly dif‹cult to determine what the truth is and to get evidence and people agreeing on what the truth is. Memory and meaning shift as circumstances shift. From having taken hundreds of depositions and reviewed endless boxes of documents, I realize that The Consciousness of the Litigator 110
memory is very fallible and plastic. Most of us have the conceit that what we remember is accurate. Often it isn’t, especially when there are strong incentives—generally money—or emotions tugging the recollection one way or another. . . . Money exerts an astonishing tug on what people think and what they are willing to do. The elasticity of memory and narrative recollection, the invariable ambiguities of words and documents, the kaleidoscopic nature of reality, the mutation of circumstances , and the variability of meaning are the stuff of litigation . One thing I am convinced of, and being a litigator has convinced me of this, is that people really do hear things the way they want to hear ’em and see things the way they want to see ’em. You can have ‹ve people in a room listening to the same argument , and those ‹ve people are going to describe it differently, and they’re going to attribute different motives, different blame, and different credit to the same argument. And in my mind that’s what litigation is really all about. It’s almost always ‹ghting over the gray area or the nuance or, you know, one person assumed one thing, another person assumed another thing, and that’s why it hit the fan. Or, after the agreement was reached, the circumstances changed in a signi‹cant way, such that one party felt that the only fair way to deal with it was x, and the other party felt that the only fair way to deal with it was y. In those cases, yeah, truth comes...