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March 15, 2018

Search For Truth
What should matter in a court of law is not who wins but who is right.

Not victory, but the truth. And not only truth, but justice.

Yet, the adversarial system is about conflict and opposition; and the unfortunate hostility caused by them that make more difficult the search for the truth.

But the search for truth, as any scientist can say, is not adversarial in nature.

Yes, there is disputation even in science.
But what scientist would conduct his or her research by means of a courtroom trial or in any other adversarial proceeding?

The punishment for perjury only goes so far for truth wears many garbs and, after all, human beings are more subjective in their worldview than objective — as Freud told us.

Settling a case is not truth finding nor as admission of guilt, but a way to dispose of case even as the search for truth may be bearing fruit.

Juror deliberations are often more about who is the “better” lawyer or “better” witness” than about the underlying search for truth.

The judge must be impartial even when one or both sides seek “a win” rather than anything else.

Advocacy may achieve “a win,” but in the process the truth may be hidden from view by this pleading or that defense.

And then there is the tendency for prosecutors to calculate whether the case presented is worth risking a “loss” with the result that the search for truth becomes irrelevant or less important.

The courtroom in the adversarial system is a jousting field where the combat is everything.

But there is one over-riding question that remains after all the cases are heard, all the verdicts rendered, all the decisions handed. Are we any closer to wisdom?

Shall our lawyering benefit society or just the client desiring some advantage? Shall our legal work in the centuries to come be as admired as the Parthenon, a Rembrandt painting, a Michelangelo, or a Bernini statue?

What does count to lawyers, and as well to the rest of us, in the end must be a higher value, one that is based not on winning, on some technical victory, but on the advancement of civilization rather than on the advancement of the client.

When lawyers see the larger picture then the public will hold lawyers up to a kinder light. We might start in law school.

For law without the larger picture is nothing more than an exercise in technique and who has the better technique.

The time is long overdue for lawyers to think about more than their clients. And this can be done without any compromise in client representation.

The institution of the law involves more than lawyering on behalf of the client. It is a statement of the moral imperatives of society that only objective truth finding can ferret out.

Let us be adversaries for the truth and not just for the clients; for how many clients ever tell the truth that goes against their own particular interests?

Stephen Schoeman
Westfield, NJ

[Revised: 03-21-2018]