The Culture of Legal Denial

• Publication year: 2021

84 Nebraska L. Rev. 247. The Culture of Legal Denial

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Jonathan R. Cohen*

The Culture of Legal Denial

TABLE OF CONTENTS

I. Introduction ...................................................... 248
II. Clients and Lawyers .............................................. 253
A. Client Ethics ................................................. 253
B. Responsibility Taking as the Moral Response to
Injury ........................................................ 253
C. The Typical Pattern of Denial ................................. 256
1. Denial Reinforcement, Fault Projection, and
Conflict Escalation ........................................ 260
2. Lawyers Benefit from Conflict Escalation ................... 262
3. Some Objections ............................................ 263
a. The Defense of Zealous Advocacy ......................... 264
b. Counseling Clients About Such
Matters Already Occurs .......................................... 266
c. The Lawyer's Epistemological Demurrer ................... 268
d. Client Alienation ....................................... 269
D. Counseling Responsibility Taking .............................. 271
1. Trust and Relationship, Not Magic Bullets .................. 272
2. A Spectrum of Discourse: Confrontation, Indirection,
and Engagement ................................ 274
a. Confrontation ........................................... 275
b. Indirection ............................................. 277
c. Engagement .............................................. 278
3. A Skeptical View and an Optimistic Response ................ 281

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III. Some Structural Factors ......................................... 283
A. Economic Incentives .......................................... 283
B. Toward Creating Economic Incentives Against
Denial ....................................................... 288
C. Dispute Resolution Mechanisms ................................ 294
D. Legal Education .............................................. 298
1. Subordinating Moral Sensibilities and Feelings
to Technical Argumentation ................................ 298
2. Training in the Ideology of Winning ....................... 301
3. A Note on Lawyer Psychological Dysfunction ................ 302
4. Training Against Facing One's Errors Openly
and Squarely .............................................. 303
5. Toward Reform ............................................. 305
E. Cultural Composition ......................................... 305
IV. Conclusion ....................................................... 311

[The] question of guilty clients . . . is the oldest of the old, old questions for lawyers.(fn1)

I. INTRODUCTION

Basic morality teaches that if a person injures another, he should take responsibility for what he has done. Lawyers, by contrast, typically assist injurers in the reverse--denial. Legal culture masks the immoral as the normal. "You prove it," says the defendant's lawyer, "and if you cannot, then my client will not pay." How did lawyers grow so comfortable in assisting injurers in a basic act of moral regression? Can this be changed?

In a prior essay, I addressed denial from the perspective of the client.(fn2) There I argued that, possible economic benefits notwithstanding, failing to take responsibility poses serious spiritual and psychological risks to injurers. Here I focus on the role of the lawyer. My goals are twofold. The first is to examine critically the practice of lawyers assisting clients in denying harms they commit and suggest some ways of changing that practice.(fn3) Lawyers commonly presume that their clients' interests are best served by denial. Yet such a presumption is not warranted. Given the moral, psychological, relational, and sometimes even economic risks of denial to the injurer, lawyers should consider discussing responsibility taking more often with clients. The second is to explore several structural or systemic

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factors that may reinforce the practice of denial seen day in and day out within our legal system.

Part II ("Clients and Lawyers") begins by critiquing lawyers who unreflectingly cater to, and sometimes even help create, clients' immediate desires for denial. As mentioned, the common presumption that a client's interests are best served by denial is highly questionable. Even if a lawyer anticipates that denial will benefit a client financially, a lawyer should not assume that such expected economic benefit outweighs possible moral, psychological, and relational costs to the client. Hence, under the existing professional ethics norms, lawyers should consider counseling clients about responsibility taking far more often than they do. The failure of lawyers to offer such counseling does not rest upon the strictures of legal ethics codes. Observe, however, that denial usually works to the lawyer's economic benefit through escalating the conflict and lengthening litigation.

For the lawyer who decides to discuss responsibility taking with a client, the question of how to do so requires careful consideration. Obstacles to such counseling include client reticence to disclose mistakes, the lawyer's fear of appearing judgmental or disloyal, and expectations by both lawyers and clients that the lawyer's essential role is to minimize the client's financial liability. ("Your job is to get me off. If I wanted someone to tell me to take responsibility for what I have done, I would have gone to a minister or psychologist.") Such obstacles, however, are not insurmountable, and can often be met with good client counseling. Critical to such counseling is a strong lawyer-client relationship based upon trust. Further, great rewards may await clients and lawyers who discuss responsibility taking. Responsibility taking after injuries can help clients maintain morally-grounded lives, and the lawyer who discusses that path with clients may discover a deepened sense of purpose in her work.(fn4)

Part III ("Some Structural Factors") shifts from the specific, "microscopic" lawyer-client interaction to the broader, "macroscopic" context within which the microscopic practice of denial occurs. How has the immoral path of denying rather than taking responsibility after injury become normalized within our legal system? How do lawyers become so comfortable being complicit in it? Such questions undoubtedly raise many other questions. Here I address several structural factors interwoven with the microscopic practice of denial. These are economic incentives in litigation, dispute resolution mechanisms, legal education, and aspects of our broader cultural composition including rights-based ideology and social denials of structural injustices. For each topic I consider whether and how such a factor may reinforce the

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practice of denial we see in ordinary disputes. I do not suggest that these factors alone explain our culture of legal denial. For example, as will be discussed in Part II, individualistic factors such as greed and shame avoidance by clients undoubtedly prompt much denial. Further, structural factors not discussed here (e.g., social mobility and anonymity among citizens, religious beliefs concerning atonement and forgiveness of sin, etc.) may also buttress the practice of denial we see in ordinary legal disputes. I select these four factors as they are closely tied to our legal system. Please note that I do not attempt an exhaustive treatment of any of these topics. Each topic is vast. Rather, my aim is exploratory--to suggest a few basic questions and hypotheses for future research.

Regarding economic incentives, I present a basic economic model illustrating that, under our compensatory damages system, denial is often the logical choice for injurers with primarily pecuniary motivations. If we wish to discourage denial, we ought to think seriously about the greater use of incentives, such as damage multipliers, to make denial economically costly. Regarding dispute resolution mechanisms, I argue that, when channeling cases into different dispute resolution mechanisms, we should consider that different mechanisms are likely to generate different levels of responsibility taking. For example, mediation, which creates direct encounters between parties, is more likely to foster responsibility taking than litigation, which keeps the parties separated.

Law schools provide a rich training ground for subsequent complicity in denial by teaching students to seek victory for their clients regardless of the merits. Critical to this education is the pedagogy of repeatedly emphasizing technical argumentation over feelings or moral sensibilities. As the extrinsic motivation of victory supplants the intrinsic motivation of seeking justice among law students, the seeds of both the public's lack of respect for the legal system and the severe levels of psychological distress found among lawyers are also sown. Further, law schools do a very poor job of teaching students about helping future clients handle their mistakes. In "Socratic" classrooms where the basic attitude toward errors is "not to make one" lest one be publically shamed before one's fellow students, students become ill-equipped to squarely address and discuss human error, both their own and, by extension, those of future clients.

Rights-based ideology, prevalent not only within law schools but within society generally, forms another piece of the denial picture. Within our culture, people, especially lawyers, commonly focus on individuals' rights and overlook individuals' responsibilities. Denial is almost always within an injurer's legal rights, but deeply at odds with his responsibilities. Social denial of structural injustices (e.g., regarding conquest and racism) is another aspect of our cultural composition

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worth examining. Are there links between such "macroscopic" denials and the...