methinks: Adversarial Ethics in Political Ads

November 11, 2004

Adversarial Ethics in Political Ads

One of the benefits of having smart friends is that one constantly learns new things. For example, this weekend from a lawyer friend I learned about the concept of adversarial ethics, a legal principle that says the attorneys for the plaintiff and defendant are ethically bound to do everything within the law to win the case for their side. Not only that, they are not personally accountable for their professional ethical actions. That is to say, telling half-truths, deliberately omitting facts, bashing the character of witnesses - all the things that give lawyers a bad reputation - are not only permitted but professionally required (should those things be of use in the trial) regardless of what the attorney's personal beliefs might be.

As shady as that might seem, the theory is that with both sides doing this, the independent third party -- a judge and/or jury - will better be able to see the truth. The ends justify the means, and the truth will come out in the wash.

Now map this mode of thought onto our recent deluge of slanted political ads. Each candidate plays both plaintiff and defendant, savagely attacking their opponent while nobly defending themselves. And we the voters are the independent third party who must decide between the two.

The problem is that we the voters do not live in a court room. We expect people in our daily lives to be more or less honest. We expect consumer TV ads to be factual. In fact there are laws to ensure they are. Is there any reason to expect political ads to be exempted from that standard? We know they are, but why?

Whether we've heard of "adversarial ethics" or not, we know politicians are perverting the facts. We know they want to win more than be fair. We assume they are toeing the line of legality. And for all those reasons we - at least on a conscious level - don't pay any attention to the ads. At least I hope no one pays attention to them. So why waste the money?

It's time for some accountability in political ads. Drug companies can't twist the truth by leaving out side effects. Why can politicians? Could it be because they write the laws? Or is it just because politicians - most being lawyers - have internalized the adversarial ethic so thoroughly they can't see opposition any other way.

Posted by dacriss at November 11, 2004 04:15 PM | TrackBack

Comments

Actually, Andy, you have slightly exaggerated what I suspect your smart lawyer friend told you. While the adversarial system certainly requires lawyers to be zealous advocates for their clients, it by no means requires--or permits--them to deliberately omit facts or tell half-truths, although it may allow them to bash witnesses' character within certain limits. A lawyer taking her adversarial role so seriously that she employed those tactics could well find herself disbarred.

Furthermore, no matter what the textbooks say about highly aggressive lawyers' ability to disclaim the actions they take while wearing their lawyer hats, no one really believes that stuff. Liberals run off to become public defenders because they think our society is unjust and has driven good people to crime. Conservatives defend corporations because they think that corporations perform an important role in our society and deserve representation too. Sensationalists take on high-profile cases because they want to be seen as fantastic (e.g., the guy who is defending Saddam and has defended a number of others accused of being war criminals). The plain truth is that a lawyer's choice about whom to represent can't help but say a few things about the lawyer.

Posted by: Mike O at November 12, 2004 02:05 PM

You are in a better position to address this topic than I, but I would say remaining silent about a life threatening heart aneurysm to save a client a few bucks is a deliberate (and deplorable) withholding of evidence; but according to the Minnesota Supreme Court it is an ethical omission.

"[t]here is no doubt that during the course of the negotiations, when the parties were in an adversary relationship, no rule required or duty rested upon defendants or their representatives to disclose this knowledge."

(Spaulding v. Zimmerman, 166 N.W.2d 709 (Minn. 1962))

As you point out, only an attorney of a certain ilk would risk another's life in an attempt to save his client money, and all attorneys are free to find a professional environment that best matches their personal convictions, be they for the underdog or the mega-corp. Either way, trial ethics are not public ethics.

But the two become one in political rhetoric. Voting records are distorted. Quotes are taken so far out of context that they become like lies. Political campaigns are built to deceive the public not inform it. The candidates heap piles of feces at our feet and then try to tell us it's their opponent's that is causing all the stink.

Yes, I did sensationalize the adversarial ethic, but only to accentuate its similarities to political campaigns.

Posted by: Andy at November 13, 2004 05:40 PM