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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 discernable 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. 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.

“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.

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. 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.

“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. 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.

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. 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.

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Amanda,
This is a beautiful read. I didn't read Day's essay, but you make it sound so profound, that now I'm indifferent whether I read your version or hers. In fact, it’s so clearly written, that it empowers me to comment anyhow.

It's exciting how you start with Ortega Y Gasset's quote. If Day characterizes a person "objectively," i.e. by how he (mis)represents thought and fact, then she hasn't yet captured his identity. But I say this (disagreeing with you?) because identity gets constructed “subjectively,” i.e. by an observer. A person could never misrepresent himself, because his selves are a social construct. (In Jen Burke's paper, I said there's no such thing as autonomy, which is too extreme for this context. Also, I accused her of being The Man, but I won't call you a liar.)

So, the freedom Ortega Y Gasset describes sounds Utopian -- “man is the novelist himself … lacking constitutive identity, not [having] subscribed to a determined being". I'd rather say that a man’s various identities get determined by the position his past behaviors take in each person’s subjective social web -- I'd rather say, that if “the novelist of himself” tried to write one novel for everyone, it would be path-dependent, and he'd inexorably lose self-control and eventually "subscribe to a [series of] determined being[s]."

On the other hand, that personal novel could contain a multitude of characters, in which case Ortega Y Gasset is saying, “control your relationships, like a good author controls all his characters.” A person’s subjective social web changes as he makes new acquaintances; in the law, "the rule is made as the rule is applied;" in Pride and Prejudice, Elizabeth continually re-defined Darcy's identity by meeting new persons who knew him …

An actor can only learn a person’s premises by entering his network, i.e. by making first impressions. (My paper calls it the "act/actor/observer" trilemma.) And it’s easy to make bad first impressions with strangers. But what we learn from these encounters empowers us to make good first impressions with their friends; their two identities of us interact, somewhere, and (somehow?) change each other.

But I can't write an autobiography in which I make everyone a Marxist. Again, a lovely paper.

-- AndrewGradman - 06 Apr 2008

To add a wrinkle: Judge Day is herself a phenotype (how some group of lawyers appears, in its habitat, to Lawrence Joseph). We're reading [in this essay, what you think about] what Joseph thinks this particular [composite] phenotype thinks about phenotypes.

-- DanielHarris - 06 Apr 2008