The Bodyguards of Lies

Christopher Whelan is Associate Director of International Law Programmes and Member of the Faculty of Law at the University of Oxford, UK, Barrister at 3PB, UK, and Visiting Professor of Law at Washington and Lee University School of Law in Virginia, USA.

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