Over the past month or so there has been much accusation, from both sides of the Referendum debate, that the other side is making misleading or untrue statements.
I went through a thought process about this which started with me thinking, rather smugly, that law isn’t like politics.
The biggest headache when writing a letter or drafting a document that might one day be used in a legal dispute is the fact that you really have to get it right. As a young lawyer, I was told by the senior partner that I should, before sending any letter out, read it back to myself imagining that:
- The letter is wrong.
- It is being read out in a very crowded courtroom by the most sarcastic barrister that my worst fears could conjure up.
- Everyone in the courtroom knows that the letter is wrong.
The senior partner told me that, if I thought that I might be more than moderately embarrassed in that scenario, then the letter needed another look.
Accuracy and morality
It’s good advice, but the advice is really about how you say things, rather than what you say. I came to realise that, quite often, the concept of right and wrong (accuracy rather than morality) is really not that easy. One of the reasons why I think that artificial intelligence will never wholly take over from lawyers is that, often, there are no “right” answers.
One of the best examples is the development of the common law, where something that seems right at one point in time seems wrong years later. Disputes that turn on how a contract applies to a situation which the contract does not expressly provide for are unpredictable. They turn on what the parties’ intentions might have been, or are deemed to have been. Negotiation is certainly more of an art than a science.
I’m told that the medical profession have similar problems, but for a different reason. Modern medicine is “evidence-led”, meaning that evidence of what works and what doesn’t work is more important than theory.
An anaesthetist friend once told me that he was not exactly sure why general anaesthetics worked, but he was willing to use them because of the body of evidence on which he could base his clinical decisions.
The law is, I think, more like diagnosis, where doctors work with probabilities based on observations. If a patient has symptoms and test results which, in the vast majority of cases are caused by a particular illness, would a doctor be “wrong” to treat the patient for that illness if it later turned out that the patient had another illness which led to the same symptoms and test results, but was extremely rare?
The thing about medicine, about science, is that it deals with reality. There is an underlying truth and the job of the scientist is to find out what that truth is. The problem with legal analysis is that, even where the facts are agreed, an analysis will always be just an analysis, based on current thinking. Law is much closer to philosophy than science.
Law gets really tricky when dealing with disputed facts. We all know that, with the best will in the world, people’s recollections about what was said on the phone, or in a meeting, will sometimes differ. In fact, when it comes to truths and lies about really difficult stuff, we lawyers don’t even make decisions at all. We get prosecution and defence advocates to present opposing cases to 12 people who seem, most of the time, to be much better at making decisions than we would be. They apply what we call common sense to cut through all the complexity and the rhetoric to reach a sensible decision.
Whereas politicians… do exactly the same thing. So, ladies and gentlemen, have you reached a verdict upon which you are all agreed? (Pretty unlikely.) No problem, we will accept a majority verdict.