The Phenotype of a Liar

-- By AmandaRichardson - 04 Apr 2008

Introduction- “The Circles of Deceit”

"Whether he be original or plagiarist, man is the novelist of himself. … To be free means to be lacking in constitutive identity, not to have subscribed to a determined being, to be able to be other than what one was." José Ortega y Gasset In “All Great Problems Come From the Streets,” Judge Celia Day relates her friend’s description of lawyers as liars. She goes on to discuss two types of lying: misrepresentation of thoughts and misrepresentation of fact. Though she doesn’t discuss it explicitly, she also implies that there is a third type of lying—the lie that is misrepresentation of self. Why she believes misrepresentation of fact is so much worse than other types of lying speaks to the heart of the question she leaves the reader with: why the law is what it is.

"Dress as an Expression of the Pecuniary Culture," or How Lawyers Lie with Clothing

“Phenotype” in the essay is defined as “how an organism appears…a result of the interaction between the organism’s genetic structure and its environment.” Judge Day and her doctor friend use this scientific term to describe the most easily discernible result of this interaction: appearance. Leaving questions of sociobiology aside, humans have the ability to define, more or less, their own phenotypes, within the confines of societal expectation and their own abilities.

• I don't understand what the first phrase means in relation to the rest of the sentence, because I don't understand what sociobiology could have to do with it. But the idea that humans can define their own phenotype seems to me obviously wrong. An immense element of our culture is taken up with offering people examples of genetically unusual humans to emulate, and to feel sorry about being unable to emulate. Our definitions of beauty and sexual attractiveness are almost exclusively tied up with inimitable genetic results, and the industries that offer people opportunities to pretend that they are closer to the genetically improbable "ideal" are among the most important and profitable industries in the global economy.

The idea of a profession manifesting itself in a set phenotype is of course a generalization—Day seems to subscribe to it while simultaneously rejecting it. She is consciously proud that she fits a different phenotype than one would expect; she also recognizes that, at least in Family Court, there are lawyers who wear jeans and chew gum. But this does not fit into her conception of the world, and she quickly retreats into stereotype. The stereotype of a lawyer is one Veblen would recognize: the conspicuous (but not flashy) consumption, the briefcase which “you really can’t put very much into” (good for projecting the appearance of leisure). The conscious adoption of a phenotype recognized by the world-at-large is, then, a self-perpetuating lie. If a judge’s task is, as Day asserts, to discern, then it is a lawyer’s task to project the image he wishes the judge to perceive.

• Not just the judge, but also the client, the opponent, the juror, the reporter, etc. This is done less with the manipulation of phenotype than through psychological insight and the forms of social resonance we call "tact." By persuading yourself that this is all a matter of "phenotype" (passive recapitulation of genetic instructions in contact with the environment) you are both overshooting Judge Day's target and making our own more difficult to understand, thus to reach.

“What goes on in people’s minds,” or double-talk, triple-talk, what can you do?

Phenotype in the essay is not just, or even primarily, about clothing. It is also about thoughts and projection. Day says of the young lawyer on the subway that “phenotype was written all over him! Relaxed and assured, yet at the same time that look of lust and abandon.” Lawyers must project an appearance of confidence with their attitudes and speech, not just their clothing, regardless of how they feel. This is why Day is so resigned when she describes “spin;” she sees this as the way lawyers operate generally. In the legal world, often, the avowal of intent or belief trumps what may be inferable (but never provable) from conduct. She relates a story told to her by a friend, and concludes with the caveat that “he sounds so sincere—the way he looks and talks—and he is, but sometimes you don’t know when he’s kidding you” (italics mine). In Day’s conception of the world, a lawyer can be both sincere and a liar simultaneously, no conciliation necessary.

• I think that Judge Day's use of her doctor colleague's somewhat more literal use of "phenotype" to mean "archetype" or just "type" is confusing you. Why not jettison the scaffolding and come to what she means by what she says. A lawyer can sound sincere while actually telling an untruth, you mean she means, I think.

Relying on representations, or why Day will get you if you say you did something when you didn’t

So lawyers can lie with their clothing, and can lie with their thoughts, but Day asserts that lying with actions is taboo, that is: “You make a material misrepresentation of fact to another lawyer, you’d better be prepared to be hit, and hit hard.” Day goes on to define this kind of lying as a betrayal, saying “what you’re really doing is not providing information to a person who trusts you to do so.” The difference between lying about what you did and lying about what you think is that one is provable, while the other is spin. Morally they may well be equal, but in the realm of the law custom dictates that one is allowable, and even encouraged, while the other is punishable by consensus.

• I don't know whose morality is the "morally" at the front of your sentence, but her view about the limits of lawyers' talk seems not idiosyncratic but conventional to me. In my daily working life I may do all sorts of things in professional interaction with another lawyer--hide the ball, misdirect attention, shade the picture so as to benefit my client--but if I make a bald and straightforward misrepresentation of fact I have crossed the line.

Cerriere says “mop and pail are mop and pail,” and indeed, they are tangible items with which to enact change in the world. What is tangible for a lawyer? According to Day, it is trust. A lawyer should not lie about that which can be proven (about deeds, that is, rather than thoughts) because in that way he or she compromises the currency of the law: the appearance of truth. It is all right to lie about what you feel but not what you’ve done, simply because words, in the law, are more important than actions—ideas are what they do, not what they mean.

• I don't think that's her idea, though it's an interesting idea and you might want to develop it further in another way. But planting it on her doesn't work very well, in my opinion, because she isn't concerned with the appearance of truth, there or elsewhere--she's concerned with the relation between law and politics. What she means in describing the lawyer's responsibility to separate facts from what you call "spin" is an internal disciplinary norm more than an external representation: laymen expect lawyers to lie more than they do, and in particular don't grasp that a lawyer who lies to other lawyers about facts will not survive unless heavily fortified.

“The question ought to be why. Why the law is what it is.”

The law, Day implies, is what it is because it is made by people who lack real power.

• NO. She says that trial judges don't have real power, because they don't make law, they just adjudicate its application. Their discretion, she says, should be differentiated from power precisely because they don't make law.

Day believes that “real power exists outside the courts…you have discretion in this job…there’s a big difference between having a bit of discretion and having real power. it is a very important distinction.” The law is shaped by lawyers, whose only real objective power is their ability to sway the judge (in the courtroom, at least; one could argue that the greater power of many lawyers is their ability to shape settlements and other bargains outside of a courtroom setting) and judges, whose power is, according to Judge Day, interpreting and discerning.

• Lawyers who make law, in Judge Day's view, have real power. We may not that she has worked as administrative agency staff and as a prosecutor before being a trial judge: She has never been in the legislature, or she might not view the power to make law as she does.

The truth of the record

The point of the phenotype discussion is simply this: lawyers have much less power than they would like others to believe they do. They lie, then, with clothes, with words, and with actions, in order to preserve their own sense of self-worth.

• I don't see this second part emerging from the text.

And what is the truth? For Judge Day the suggestion of what truth might be comes in her last story. An abused woman sits beside the husband she tried to kill. Her astonishment is not just that the husband sits beside the wife he has abused and who has tried to kill him but that he does not challenge the record, does not try to create his own truth, instead simply sits and waits—a cardinal sin for those whose business it is to spin webs of deception.

• I don't think this is the point of her story at all. She's telling the story about someone she has to sentence. You are interpreting the story as though she were telling it from outside. But she isn't outside: she is coping with the requirement that will make her sentence this woman to a decade of prison time, harming or destroying her children's lives and even the business the defendant tried to preserve while killing the husband who abused her.

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• Let's work on this more after we have had a chance to read closely together the text on which the essay is based.