Day 153, week 32: judge not

This morning I asked UpTights if she believed the client we saw in conference yesterday.

“Not for me to say BabyB.  Not for me.  That’s the judge’s job.”

“But what if it’s completely obvious?”

“Come on BabyB.  You should know that by now.  If we only represented clients we thought were telling the truth we wouldn’t be working.”

“But aren’t you misleading the court?”

“Not unless he actually tells me he’s lying.”

“But he’d never do that.”

“There you are BabyB.  You’re starting to get it.”

May 9, 2007 · Tim Kevan · 7 Comments
Posted in: Uncategorized

7 Responses

  1. Great River - May 9, 2007

    Talk about dancing on a pin!
    Keeping the blinders on…
    Take your pick

  2. david giacalone - May 10, 2007

    Doesn’t a UK lawyer have the duty to take reasonable action to reassure himself or herself that the assertions made in any pleading are truthful? Even we uncivilized cowboy counselors in the USA have the following restrictions, under Rule 11 of the Federal Rules of Civil Procedure:
    “(b) Representations to Court.
    By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,– . . .
    “(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
    “(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.”
    Shaky as they may be some days, stick to your ethical guns, BabyB.

  3. AJ - May 10, 2007

    I don’t think the situation in the UK is far different from that described above- any barrister preparing a case would have to check that the allegations/denials of factual contentions made by their client had evidentiary support. If it came out that this was not so then the barrister would advise the client not to bring/defend the case. Obviously if the client made clear that they were lying then the barrister would be ethically obliged to withdraw from the case.
    However, in the absence of an outright admittance that they are lying, every client has the right for their case to put before the court, however implausible it might seem. The whole point of the adversarial system is that the other side can put across strong arguments and evidence in opposition. One has to give the judges credit to arrive at the right decision in such cases, that is what they are there for.
    If UpTights was to withdraw from the case then the client would probably have no difficulty finding someone else to represent him.

  4. Matt - May 10, 2007

    How interesting that you have those duties in America. We have nothing similar at all over here I’m afraid and Uptights’ attitude, albeit unattractively expressed herein, is correct.
    After all, if it’s so obviously a lie, then the court will see through it.

  5. Abigail - May 11, 2007

    Who benefits? The lawyers, obviously, and the neurologist- taking a lawyer’s photograph, you say, “Say fees”. Not the insurance company, whose costs go up if it is a worthless ploy.

  6. Fresh - May 15, 2007

    The insurers pass the costs on too – to the rest of us premium payers.
    The unethical party is a ‘tame’ neurologist.

  7. SM - May 18, 2007

    We aren’t Judges and everyone is entitled to trial by Judge if they wish it. It is simply the height of arrogance to suggest you ‘know’ the truth. This case looks pretty obvious – so did all the other miscarriages of justice at the time.
    Clients display a variety of nerves and concerns in a variety of ways (including, of course, the concern that they may be found to be lying). But you have to so brave as to be bordering on stupid to attribute a motive to someone you don’t know, without testing the case against them.
    Baby B – your conscience deserves better than to be given into whenever it feels right, without a single tough question being asked of it.