Is the growing prevalence of lying and misinformation in public life spilling over into the courtroom, threatening the integrity of the legal system? The legal system faces an unprecedented challenge: how to uphold the rule of law in a world increasingly indifferent to truth.

Research indicates a significant increase in lying and misinformation among public figures in the U.S. There is a growing perception of dishonesty among politicians, with findings suggesting that both parties justify falsehoods to maintain partisan trust. Another study revealed that people often dismiss falsehoods when they align with their political beliefs, indicating a troubling acceptance of deceit in politics.

Furthermore, a notable percentage of Americans admit to knowingly sharing false political information online, reflecting a broader acceptance of misinformation. To state the obvious, there is a rising level of deception and acceptance of deceoption among the public in general.

It’s bad enough for those in public life to lie without impunity. It’s bad enough when misinformation and disinformation are spread on social media and elsewhere. Let’s face it: most of us don’t believe 90% of what politicians say and what we see on social media anyway. And if someone cares to look, there are plenty of services that can fact check what is said (if the services are believed, which is another problem).

But politicians and social media posters aren’t officers of the court. They don’t have an ethical duty to be candid (See ABA Model Rule 3.3). Nevertheless, I worry that this propensity to bald face lie when it suits your purpose will carry over into our courtrooms and our judicial process. This propensity could seriously impact our courts and judges, and undermine the rule of law.  

Manipulation, Inferences, or Lies?

Indeed, some lawyers have a reputation for traveling unencumbered with the facts, as one of my partners used to put it. In simpler times, most of us and most of the judges knew who they were and took what they said with the proverbial grain of salt.

Indeed, many of us have manipulated the facts in our favor in court and elsewhere. Sometimes, we may have even come close to the line of stating not only what the facts were but what they could ultimately turn out to be–without being as transparent as we should be. We have all drawn inferences from facts that are, er, a stretch. Many of us have occasionally come close to the line between inference and outright falsehood. Savvy and knowledgeable judges often could get a sense, though, of the difference between facts and hyperbole coming out of the lawyer’s mouth.

With the increased lies and misinformation in public life, pure lies may overburden our courts and judges

Outright Lies

But I worry now that with the increased lies and misinformation in public life, pure lies may overburden our courts and judges. Routine motions already often turn into shouting did to, did not matches where both sides come close to or even cross the line. As the propensity to tell untruths rachets up, will judges be called on more and more to try to ascertain who is telling the truth? How will our overburdened judges be able to tell the difference? They are already strapped, particularly at the state level. Where will they find the time and energy to ferret out the untruths?

As lawyers from different jurisdictions become increasingly fixtures in our court systems, judges can no longer rely on past conduct and reputation to know who is telling the truth in their courtrooms and who is not.

When we see bald-faced lies routinely told in public to achieve the liar’s goals, can we expect lawyers in the vigorous pursuit of their clients (and own) interests to resist the temptation to lie when it helps their cause? And will our judges be able to resist the urge to just throw disputes to the jury or just not deal with them at all? 

The Deep Fake Syndrome

Much has been written about the impact of the threat fake photos, videos, and audio pose to our courts and processes. That threat is real and will itself strain our courts.

But there is another form of deepfake we need to worry about. It’s the expert who misrepresents their credential. Who misrepresents what they are qualified to say. Who tells bald face lies couched as opinions. It’s the witnesses who will be even more emboldened to lie under oath. It’s the lawyers who, as set out above, feel no compulsion to be honest and candid with the courts.

Put all this together, and our courts will soon face a tsunami of falsehoods without time, energy, or resources to tell the difference between facts, wishful thinking, and outright lies.

A Tsunami of Falsehoods

Put all this together, and our courts will soon face a tsunami of falsehoods without time, energy, or resources to tell the difference between facts, wishful thinking, and outright lies.

Indeed, technology can help. Data analytics can supply background information that courts have never had access to. Common sense and education may play a role. 

But without resources to engage what analytics there are, without sensitization to the magnitude of the problem, and without a demand that lawyers fulfill their ethical responsibilities to be candid, I fear for our court system.

There is also a carry-over effect. As much as our judges face challenges from untruth, our jury system, the bedrock of the rule of law, may face even more challenges. Juries are growing more and more accustomed to the plethora of lies we all face every day. I fear they will reach a point where no one, no piece of evidence, will be believed.

In the days of social media and shorter and shorter attention spans, I fear jurors will rely less and less on evidence and more and more on their personal beliefs apart from the facts. In a society where we are increasingly polarized in our individual beliefs, the result could be fewer and fewer unanimous or even majority verdicts.

What Can Be Done?

The integrity of our legal system hinges on one foundational principle: truth. Yet, as dishonesty becomes normalized in public life and infiltrates our courtrooms, the rule of law faces a profound challenge.

Certainly, a lawyer has an ethical duty not to make a false statement to a court or offer evidence that the lawyer knows to be untrue. But the mere statement of what should be obvious does not by itself prevent courtroom falsehoods.

At the end of the day, truth and candor are the responsibility of the lawyers

It’s a problem that has no easy solutions. Indeed, providing more resources to judges and courts to utilize technology and data can help. But those kinds of resources are controlled by legislatures, which are often not eager to provide money. We can sensitize judges to the problems and look for ways to help judges deal with lawyers and witnesses lying in the courtroom. We can demand judges impose tough sanctions on the perpetrators of falsehoods. We can demand bar associations impose sanctions when lawyers lie or sanction lies. However, these tools are ineffective because of the small day-to-day lies that poison our system.

At the end of the day, truth and candor are the responsibility of the lawyers. Lawyers must commit to their ethical duty of candor, setting an example of integrity in a culture that increasingly rewards deceit. Are we, as professionals, up to the task in the age of getting everything we can as quickly as we can? We better be.

Photo Attribution: Photo by Tingey Injury Law Firm on Unsplash