After you spend a little time in the courtroom, you realize that the ritual of having the witnesses swear to tell the truth is too often more about form than substance. An attorney once told me that he objected to the testimony being offered by a witness in a divorce case on the grounds the witness was lying. The judge retorted, "This is a divorce suit. Everyone lies." The case droned on.
Why, after years of hearing divorce cases, would a judge so readily dismiss the objection that a witness was lying? Because in this win-lose arena, we make the stakes so high that people often rationalize that telling a little white lie in their case is less wrong than what they might lose if they tell the truth. The way the system is set it promotes lying, and even honest people sometimes do.
Consider what can be at stake in a divorce suit. First of all, you can lose custody of your children. You might lose your home or your business. The IRS might come after you if your spouse testifies about income that you never reported. Your spouse might report illegal drug use, especially relevant in a custody case. Placing broken families, people who used to love and trust one another, in this adversarial arena is wrong. It is not a safe space and it can make the family rift even worse.
Because lying is often rewarded and the truth punished, so much lying takes place that the system would break down if we took perjury seriously. This is why the judge disregarded the attorney's objection. Only cases like Bill Clinton stretching the truth are pursued.
In contrast, consider instead what happens in the unitive justice arena. Let's look at how attorneys trained in collaborative law might handle a divorce case.
Collaborative Law is a non-adversarial process that seeks a win-win resolution for everyone. Non-adversarial does not mean that attorneys are not involved. Each client is represented by an attorney, but the attorneys give their advice in the presence of the other side. They are to give the best legal advice they can, not to manipulate and scheme so their clients alone will benefit. Neutral advisors may be called upon to give fair and impartial advice to both parties. The goal is for everyone to have the same information when making decisions.
What we now call Collaborative Practice grew out of the courageous work of Stu Webb, a Minnesota attorney who in the 1990s decided there had to be a better way. You can see an interview of Stu talking about how this happened on the website, Cutting Edge Law. It is an inspiring story of how one person made a huge difference. While Stu's intent was not to address the problem of lying in the courtroom, the system of collaborative law that he founded does. The unitive model creates a much safer space for telling the truth than the punitive model provides.
Other unitive models of justice, like restorative justice, are likewise far less burdened by the problem of lying. In a safe space, when the injured party speaks the truth directly to the person who caused the harm, the offender often admits responsibility and willingly makes amends. A short video that demonstrates how this works is The Woolf Within. I urge you to take 10 minutes and watch it.
Posted on GenuineJustice.com on 8-18-10.