Steven Lubet - Nothing but the Truth

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NOTHING BUT THE TRUTH

CRITICAL AMERICA

Richard Delgado and Jean Stefancic

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Nothing but the Truth: Why Trial Lawyers Dont, Cant, and Shouldnt Have to Tell the Whole Truth
Steven Lubet

STEVEN LUBET

Why Trial Lawyers Dont, Cant, and Shouldnt Have to Tell the Whole Truth

NEW YORK UNIVERSITY PRESS

New York and London

2001, 2002 by New York University

All rights reserved

First published in paperback in 2002.

Library of Congress Cataloging-in-Publication Data

Lubet, Steven.

Nothing but the truth : why trial lawyers dont, cant, and shouldnt
have to tell the whole truth / Steven Lubet.

p. cm. (Critical America)

Includes index.

ISBN 0-8147-5173-3 (cloth : alk. paper)

ISBN 0-8147-5174-1 (pbk. : alk. paper)

1. LawUnited States. 2. Trial practiceUnited States.

3. Truthfulness and falsehood. I. Title. II. Series.

KF384.Z9 L83 2001

347.7375dc21 00-011952

New York University Press books are printed on acid-free paper,
and their binding materials are chosen for strength and durability.

Manufactured in the United States of America

10 9 8 7 6 5 4 3 2 1

To Natan Isaac and Sarah Nomi

INTRODUCTION
Storytelling Lawyers

CHAPTER ONE
Biff and Me: Stories That Are Truer Than True

CHAPTER TWO
Edgardo Mortara: Forbidden Truths

CHAPTER THREE
John Brown: Political Truth and Consequences

CHAPTER FOUR
Wyatt Earp: Truth and Context

CHAPTER FIVE
Liberty Valance: Truth or Justice

CHAPTER SIX
Atticus Finch: Race, Class, Gender, and Truth

CHAPTER SEVEN
Sheila McGough: The Impossibility of the Whole Truth

I am grateful to the following people for their comments, advice, and other input:

Kathy Abrams, Frank Adams, Ann Althouse, Adnan Arain, Mary Becker, Bruce Boyer, Christopher Bracey, Robert Burns, Paul Carrington, Louis DeCaro, Richard Delgado, Kathryn Doi, Paul Finkelman, Nabil Foster, Monroe Freedman, Despina Papazoglou Gimbel, Alan Gless, Philip Hamburger, Alicia Hawley, Timothy Hoff, Wythe Holt, David Kertzer, Jane Larson, Niko Pfund, Jeffrey Rice, Dorothy Roberts, Alex Rose, James Simeri, Rayman Solomon, William Springer, Jean Stefancic, Piper Taggert, Timothy Terrell, Paulette Van Zant, Marianne Wesson, David Winters, faculty workshop participants at Northwestern University, the University of Alabama, the University of Iowa, and the University of Colorado, and the students in my Lawyer-Storyteller seminar at the Northwestern University School of Law.

I am particularly indebted to Morgan Cloud (who told me why I should write this book), Linda Lipton (who showed me how to make it all fit together), and Fred Lubet (who ensured that it would all make sense).

And of course, the habitues of the Unicorn Roundtable left their own indelible stamp on this endeavor, whether they admit it or not.

This project received generous support from the Northwestern University School of Law Class of 1962 Reunion Gift Fund, which also resulted in the publication of the following articles: The Forgotten Trial of Wyatt Earp, 72 Colorado Law Review ___ (2001); John Browns Trial, 52 Alabama Law Review ___ (2001); The Man Who Shot Liberty Valance: Truth or Justice in the Old West, 48 UCLA Law Review ___ (2000); Murder in the Streets of Tombstone: A Legendary Theory of the Case, 27 Litigation 35 (2000); Rumpled Truth on Trial, 94 Northwestern University Law Review 627 (2000); Conflict of Interest at the O.K. Corral, 3 The Green Bag 2d 141 (2000); Reconstructing Atticus Finch, 97