Story Time
California Lawyer

Story Time

August 2012

I tried my first case in 1973. I was 26 years old and had been working as an associate in a prominent San Francisco law firm for less than a year. I represented the defendant in a civil lawsuit, a businessman whose English was marginal and whose ethics were situational. He told the story of how he came to be sued with great conviction.

As many new lawyers do, I overidentified with my client and internalized his feelings. But his story needed work. In those days, trials could be trailed for a very long time. So my client and I spent many days together rehearsing his testimony.

My questions and his answers were scripted. Together, we crafted a story that, if believed, would exonerate him. We were both prepared to give a polished and persuasive performance. But in rehearsing my client's testimony I was also preparing him to tell a story that was not true. I did this because my client wanted to win his case, and I wanted to win my first trial.

No one ever told me where to draw the line between presenting my client's side of the story and telling the truth. In those days, the emphasis at first-rate law schools was on teaching the students to think like lawyers. There were no courses in professional responsibility, and the bar exam did not include an ethics component. To me, "thinking like a lawyer" meant turning my client's version of what happened into clear and convincing evidence.

In my opening statement, I outlined my client's expected testimony. When the trial started, the plaintiff's lawyer called my client to testify as part of his case. He asked the same questions I had planned to ask, but in different words and in a different order. My client became flummoxed, and he responded by telling the truth. This is ordinarily a good thing to do when you are under oath, but the truth is not what we had rehearsed.

After a few minutes, the judge realized what was going on and called counsel into chambers, where he got right to the point: "Mr. Garfield, your client is going to lose this case. Perhaps you should try to settle it." I had no alternative that made a lick of sense. I recalled what Lyndon Johnson had said about being on a Texas highway in a hailstorm: "I can't run, I can't hide, and I can't make it go away."

Of course, the plaintiff's lawyer was in no mood to offer a deal. So we settled - for a hundred cents on the dollar, plus interest and attorneys fees. My client asked me how this could have happened, as his story was so good. I had no answer.

A couple years later I moved to Los Angeles and became a divorce lawyer. Divorcing spouses have strong feelings about their marriage. They, too, want to tell their stories. They believe that their stories should affect the resolution of the legal issues. But California is a no-fault state: The history of the marriage is irrelevant. Why it failed is equally irrelevant - besides, the parties' stories almost always conform to their present self-interests. Although these stories may not be fabricated, they do reflect each party's emotional perspective.

I had not forgotten what I learned in my first trial. Because there was no way for me to know if my clients' stories were true, I never again rehearsed a client's testimony. I told my clients to just answer the questions they were asked. Most of them found this frustrating.

In 1992 my career took another turn: I became a divorce mediator. Because I did not represent my clients in court, I could listen to their stories uncritically. It was no longer my job to squeeze the round peg of my clients' stories into the square hole of the adversarial process.

These days my mediation clients tell me their stories in their own time and in their own way, without interruption or objection. I give them my full attention and they feel heard. It doesn't matter whether their stories are true. My clients do not care whether their stories would constitute admissible evidence in court, or persuade a judge to see things their way - and neither do I.

Franklin R. Garfield is a family law attorney and mediator in Los Angeles.

Reader Comments

Rosa Cumare - August 6, 2012
This story is appalling. Since when does any adult who enters law school have to be taught that lying is wrong? Or that lying under oath is a crime? You should not need an ethics exam to have internalized a coherent system of morality by the time you start to practice law. And then to have the take away lesson be that you simply abandon your clients to their own devices, without preparation - which is not the same as rehearsing or coaching fabricated answers - is also shocking. The final view expressed by this mediator that it doesn't matter if the litigants' stories are true suggests that the settlements he negotiates are based on dubious premises; the mediator may not be an official fact-finder, but his job surely is to give the parties a truthful assessment of the merits of their cases. But I guess this author has long had a blinkered view of truth vs. falsehood. I hope the Bar Journal if it publishes any further articles by him does so with a cautionary note: ethically challenged thinking ahead!

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