This book uses real-world examples, case studies, and commentary from practitioners to reveal the many and varied strategies American and English lawyers use to protect truth. It shows how they tackle their conflicting duties, and highlights the 'tragic choices' lawyers everywhere routinely make through their 'power of decision'. What emerges are new ways of understanding the critical role lawyers play in society - and their professional responsibilities. 'Truth is so precious it should always be protected by a bodyguard of lies.' Churchill said this about wartime deception plans, but lawyers'…mehr
This book uses real-world examples, case studies, and commentary from practitioners to reveal the many and varied strategies American and English lawyers use to protect truth. It shows how they tackle their conflicting duties, and highlights the 'tragic choices' lawyers everywhere routinely make through their 'power of decision'. What emerges are new ways of understanding the critical role lawyers play in society - and their professional responsibilities. 'Truth is so precious it should always be protected by a bodyguard of lies.' Churchill said this about wartime deception plans, but lawyers' clients may think their truth - especially an 'inconvenient truth' - is so precious it too should be protected. Lawyers are 'bodyguards of lies' when they use so-called 'tricks of the trade' not only to keep clients' secrets but to construct a reality that is far from real. But should they? Lawyers have a divided loyalty. The book presents a unique and fascinating account of what happens when lawyers' duties to clients conflict with their duties to the legal system, and looks in detail at the ethical codes and laws that regulate their conduct.
Foreword by Stephen Sedley, Lord Justice of Appeal 1999-2011 PART I SETTING THE SCENE: THE TRUTH ABOUT LIES 1. Introduction I. 'The Truth, the Whole Truth, and Nothing but the Truth' II. Operation Mincemeat III. 'Corkscrew' Minds IV. A Hippocratic Oath for Lawyers? V. Lawyers, Truth and Justice VI. Tricks of the Trade VII. An Inconvenient Truth VIII. Why Tricks Matter IX. A Comparative Approach X. Structure of the Book 2. The Lawyer's Role: 'Hired Guns' or 'Heroes'? I. Defining Lying II. Defining Truth III. Virtuous Lying IV. 'Virtuous L(aw)y(er)ing' V. The Lawyer's Professional Responsibility - Protecting Clients? VI. Respect for Client Autonomy VII. Protecting Dignity and Liberty VIII. The Pervasiveness of Law IX. Are Lawyers 'Hired Guns' or 'Heroes'? X. Conclusions 3. Lawyers: A Divided Loyalty? I. Legal II. Ethical III. Moral IV. Conclusions PART II STRATEGIES TO PROTECT THE TRUTH 4. Keeping Confidentiality: Tragic Choices I. Tragic Choices II. Exceptions III. Inadvertent Disclosure 5. Lying with the Law: The Lecture I. Anatomy of a Murder II. Advice on the Law III. Answering Questions IV. Advice on Law Enforcement V. Advice on Evidence - Coaching VI. Baron & Budd - Getting Away With It? 6. The Inconvenient Truth: Selective Ignorance and Wilful Blindness I. A Time to Kill II. The 'Buried Bodies' Case and Mecca v McClure III. Perjury IV. 'None of My Business' V. Inferences VI. Expertise 7. Licence to Lie I. Default II. Official Sanctions III. Contracts of Silence: Secret Settlements and NDAs 8. Exploring the Outer Space of Law I. Legal Realism and the Indeterminacy of Law II. Stare Decisis III. Non-Positive Law IV. An Arguable Case V. Private Law-Making - Test Cases VI. Fidelity to Law 9. Creative Compliance I. The Techniques of Creative Compliance II. Enforceability III. Will Creative Compliance Survive? IV. Creative Compliance - Ethical or Not? 10. Lying with the Sword of Truth and the Dagger of Deceit I. The Sword of Truth II. The Dagger of Deceit III. Economical with the Truth 11. The Smoking Gun I. Discovery/Disclosure II. Whistleblowers and Gatekeepers III. Strategies 12. A Sporting Chance? Courtroom Tactics in a Criminal Context I. A Sporting Chance? II. Keeping Evidence Out III. Challenging Adverse Evidence IV. Presenting an Alternative View - The 'SODDI' Defence V. The 'Cockroach' Defence - Trial by Ordeal VI. Playing the Judge VII. Victim-Blaming VIII. Ethical or Not? IX. Reasonable Doubt - The Twilight Zone X. Some Conclusions 13. Effective Advocacy I. Playing the Jury II. Preparation - The 'Dream Team' III. Cross-Examination IV. Tools of Persuasion V. Spin-Doctoring VI. Challenging the Expert VII. Opening and Closing Speeches VIII. Jury Nullification (US) - Jury Equity (EW) 14. Courting the Court of Public Opinion I. Kobe Bryant - Again II. Public Opinion III. Trial Publicity Rules IV. Super-Injunctions, Anonymity Injunctions and Hyper-Injunctions PART III BODYGUARD ETHICS 15. The Dynamics of Decision-Making: The Pit and the Pendulum I. The Pit II. The Pendulum - Crossing the Line III. The Challenge 16. The Dynamics of Ethical Judgment I. The Missing Link II. The Three-legged Stool - Clients, Courts and Conscience III. The Fox and the Hedgehog IV. Thinking Like a Lawyer V. The Application of Ethical Discretion VI. The Conscience of a Lawyer PART IV CONCLUSIONS 17. Bodyguards of Lies: Power and Responsibility I. Rule of Law - Rule of Lawyers II. An Oligarchy of Bodyguards III. Power IV. First-Class Lawyering V. A Modified Standard Conception of Lawyers' Ethics VI. An Oligarchy of Ethical Lawyers: Obedience to the Unenforceable
Foreword by Stephen Sedley, Lord Justice of Appeal 1999-2011 PART I SETTING THE SCENE: THE TRUTH ABOUT LIES 1. Introduction I. 'The Truth, the Whole Truth, and Nothing but the Truth' II. Operation Mincemeat III. 'Corkscrew' Minds IV. A Hippocratic Oath for Lawyers? V. Lawyers, Truth and Justice VI. Tricks of the Trade VII. An Inconvenient Truth VIII. Why Tricks Matter IX. A Comparative Approach X. Structure of the Book 2. The Lawyer's Role: 'Hired Guns' or 'Heroes'? I. Defining Lying II. Defining Truth III. Virtuous Lying IV. 'Virtuous L(aw)y(er)ing' V. The Lawyer's Professional Responsibility - Protecting Clients? VI. Respect for Client Autonomy VII. Protecting Dignity and Liberty VIII. The Pervasiveness of Law IX. Are Lawyers 'Hired Guns' or 'Heroes'? X. Conclusions 3. Lawyers: A Divided Loyalty? I. Legal II. Ethical III. Moral IV. Conclusions PART II STRATEGIES TO PROTECT THE TRUTH 4. Keeping Confidentiality: Tragic Choices I. Tragic Choices II. Exceptions III. Inadvertent Disclosure 5. Lying with the Law: The Lecture I. Anatomy of a Murder II. Advice on the Law III. Answering Questions IV. Advice on Law Enforcement V. Advice on Evidence - Coaching VI. Baron & Budd - Getting Away With It? 6. The Inconvenient Truth: Selective Ignorance and Wilful Blindness I. A Time to Kill II. The 'Buried Bodies' Case and Mecca v McClure III. Perjury IV. 'None of My Business' V. Inferences VI. Expertise 7. Licence to Lie I. Default II. Official Sanctions III. Contracts of Silence: Secret Settlements and NDAs 8. Exploring the Outer Space of Law I. Legal Realism and the Indeterminacy of Law II. Stare Decisis III. Non-Positive Law IV. An Arguable Case V. Private Law-Making - Test Cases VI. Fidelity to Law 9. Creative Compliance I. The Techniques of Creative Compliance II. Enforceability III. Will Creative Compliance Survive? IV. Creative Compliance - Ethical or Not? 10. Lying with the Sword of Truth and the Dagger of Deceit I. The Sword of Truth II. The Dagger of Deceit III. Economical with the Truth 11. The Smoking Gun I. Discovery/Disclosure II. Whistleblowers and Gatekeepers III. Strategies 12. A Sporting Chance? Courtroom Tactics in a Criminal Context I. A Sporting Chance? II. Keeping Evidence Out III. Challenging Adverse Evidence IV. Presenting an Alternative View - The 'SODDI' Defence V. The 'Cockroach' Defence - Trial by Ordeal VI. Playing the Judge VII. Victim-Blaming VIII. Ethical or Not? IX. Reasonable Doubt - The Twilight Zone X. Some Conclusions 13. Effective Advocacy I. Playing the Jury II. Preparation - The 'Dream Team' III. Cross-Examination IV. Tools of Persuasion V. Spin-Doctoring VI. Challenging the Expert VII. Opening and Closing Speeches VIII. Jury Nullification (US) - Jury Equity (EW) 14. Courting the Court of Public Opinion I. Kobe Bryant - Again II. Public Opinion III. Trial Publicity Rules IV. Super-Injunctions, Anonymity Injunctions and Hyper-Injunctions PART III BODYGUARD ETHICS 15. The Dynamics of Decision-Making: The Pit and the Pendulum I. The Pit II. The Pendulum - Crossing the Line III. The Challenge 16. The Dynamics of Ethical Judgment I. The Missing Link II. The Three-legged Stool - Clients, Courts and Conscience III. The Fox and the Hedgehog IV. Thinking Like a Lawyer V. The Application of Ethical Discretion VI. The Conscience of a Lawyer PART IV CONCLUSIONS 17. Bodyguards of Lies: Power and Responsibility I. Rule of Law - Rule of Lawyers II. An Oligarchy of Bodyguards III. Power IV. First-Class Lawyering V. A Modified Standard Conception of Lawyers' Ethics VI. An Oligarchy of Ethical Lawyers: Obedience to the Unenforceable
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