Lawyers as the enemies of truth. .

• Author: McGinnis, John O.
• Position: Roundtable: The Lawyer's Responsibility to the Truth - Federalist Society 2002 Symposium on Law and Truth

In these brief remarks, I will focus on a single aspect of the relationship between lawyers and truth. I will discuss why the issue of truth in the legal system reveals a fundamental tension between lawyers and the public. The public benefits from truth-eliciting rules in the legal system, but lawyers can benefit from truth-obscuring rules. Truth-eliciting rules are an important part of the rule of law, because they assure that courts base legal decisions on relevant factual states of the world. Unfortunately, lawyers often have an interest in truth-obscuring rules because legal complexity and uncertainty can be a source of business. Hence, we face a sad paradox: the class that should be the great guardian of truth in law may instead have the greatest interest in subverting it.

As a matter of intellectual history, it is not surprising that the search for truth is an important part of the rule of law. We inherited both the modern concept of the rule of law and the empirical sciences from the Enlightenment, and both are similarly rooted in an ideal of objectivity. The rule of law requires that society be governed by abstract legal rules whose application is objective, in the sense that it does not vary with the status or rank of the parties to a particular dispute. The scientific idea of empirical truth is also objective in that the real world is the same for everyone regardless of personal perspective or social status. The alliance of these concepts seems clear from recent postmodernist attacks on objectivity in both law and science.

Moreover, in the Anglo-American tradition similar modes of competition have been used to facilitate the search for truth in both science and law. Scientists seek the truth in a decentralized process of peer review, in which rival colleagues test and critique each other's results. It is only when a consensus emerges from the competing perspectives that we accept a given finding as true. Similarly, we have rejected an inquisitorial system of legal fact finding in favor of an adversarial system largely because we fear the power of the centralized state to skew the truth. Institutionalized conflict among self-interested individuals underlies the validity of classic defenses of the adversarial system: "[cross-examination is the] greatest legal engine ever invented for the discovery of truth." (1) Our adversarial system is thus better than the alternatives because it decentralizes accountability for truth seeking...