Promoting Candor

By AALS President Darby Dickerson, Dean, UIC John Marshall Law School

The theme for my presidential year is “The Power of Words.” During my January 2020 presidential address,¹ I emphasized three words—“caste,” “candor,” and “change”—and for each word, I posed a challenge to the legal academy. This column addresses “candor” and the challenge for faculty to promote candor in their classrooms.

Some have postulated that we are living in a post-truth era. While I understand that “truth” is hardly absolute, I find it disturbing that some leaders, especially those trained in the law, more readily embrace spin than candor.

An unlikely, yet eloquent, proponent of candor is Raymond Reddington, criminal mastermind on NBC’s The Blacklist. In a hearing related to the government’s charges of treason against him, Reddington lamented, “The sad fact is, the facts have never mattered less than they do today. We’re living in a time when truth has been so diminished in value that even those at the top of government are quite comfortable with truth being whatever they can convince people to believe.”²

“Candor” refers to being open and honest, or forthright.³ Candor has traditionally been central to the legal profession. The Model Rules of Professional Conduct, for example, call for lawyers to “render candid advice,”⁴ exhibit candor toward the tribunal,⁵ avoid making false statements of material fact or law to a third person;⁶ and, if serving as prosecutors, disclose exculpatory evidence.⁷ Candor helps the legal profession earn public trust. It helps us to pursue justice. But the value of candor seems to be eroding, especially in the face of ubiquitous spin control.

“Spin” is persuasion grounded in deceptive methods. Hallmarks of spin can include “exaggeration, euphemisms, inaccuracies, half-truths, and excessively emotional appeals.”⁸ People using spin “paint a false picture of reality by bending facts, mischaracterizing the words of others, ignoring or denying crucial evidence, or . . . making things up.”⁹ Forms of spin include cherry picking, the non-denial denial, the non-apology apology, distancing language, misdirection and diversion, and sound bites.¹⁰ Spin is the sibling of puffery and innuendo and the cousin of false rumors, fake news, ¹¹ astroturfing, ¹² and deepfakes.¹³

Because law schools start teaching persuasive techniques in the first year, faculty should develop and use techniques to teach students the value of candor and help them find the line between acceptable persuasion—when an advocate argues zealously, accurately, and honestly for the client—and tactics that can harm their clients, the judicial system, and the profession.

Several ideas to promote candor include:

• • Modeling candor in our classrooms. Modeling candor in the classroom includes admitting when we do not know the answer or acknowledging when we make mistakes. It also means being transparent about how we teach and assess students; avoiding gossip and rumors; and presenting and using information in a way that promotes accuracy and truth.

• • Welcoming diverse perspectives. Group polarization and information cascades can increase the chances of people accepting and spreading false information.¹⁴ “[W]hen like-minded people get together,” writes Professor Cass R. Sunstein, group polarization means “they often end up thinking a more extreme version of what they thought before they started to talk to one another.”¹⁵ “Cascades” occur because we tend “to rely on what other people think and do.”¹⁶ Thus, if most “people we know believe a rumor, we tend to believe it too,” especially if we lack relevant information of our own.¹⁷ Welcoming diverse perspectives during discussion can combat group polarization and cascades by helping students better understand issues and be less likely to accept or disseminate inaccurate or biased information.

• • Encouraging students to be curious and ask questions. As astronomer Carl Sagan observed, “There are naïve questions, tedious questions, ill-phrased questions. But every question is a cry to understand the world. There is no such thing as a dumb question.”¹⁸ But when students don’t understand something, they can feel vulnerable. It can be difficult for them to speak up and ask questions, especially when a power differential exists. The professor’s response to their question may impact whether they ask again.¹⁹ Thus, how we react to students’ questions will determine whether we create a culture of candor or a culture of silence in our classrooms.

• • Discussing spin and other deceptive techniques. Openly discussing candor versus spin and other deceptive tactics can help students gain a more nuanced understanding of acceptable and unacceptable persuasive techniques. Most of us have witnessed attorneys who modify quotations in a misleading manner, fail to discuss adverse authority, omit unfavorable facts, or use red herrings to divert attention away from their side’s weaknesses. We should expose that bad behavior and discuss the consequences of cutting ethical corners. We also need to understand how technology impacts candor. For example, we might explore with our classes how deepfake technology could impact trial evidence or how similar technology can be used to create synthetic fingerprints that weaken biometric security systems.²⁰ Not only will shining a brighter light on these issues bring greater awareness about how technology might imperil candor, but our students may very well be the ones to help solve these and similar dilemmas.

• • Incorporating ethical issues into assignments. Professor Frances C. DeLaurentis of Georgetown University Law Center, in her article titled When Ethical Worlds Collide: Teaching Novice Legal Writers to Balance the Duties of Zealous Advocacy and Candor to the Tribunal,²¹ urges legal writing professors to discuss ethical rules and client stories that will help students develop a more sophisticated understanding of an attorney’s competing duties to the client and the tribunal and to design assignments that will help students to navigate the divide between appropriate advocacy and misrepresentation. She uses powerful examples to show why her recommendations matter to student development and the concept of candor.

• • Adding courses on data and statistics to the law school curriculum. Many lawyers joke that they chose law school because they hated math. But in an increasingly data-driven world, it is critical that our students understand the importance of data and how to evaluate it, and how to understand and use statistics.²² Without that knowledge, they will not be able to effectively dispute faulty data and statistics, which in turn means that those weapons can be used to support spin and other mistruths.²³

• • Teaching information literacy. As the famous New Yorker cartoon warned, “On the internet, nobody knows you’re a dog.”²⁴ Although our traditional-aged students are digital natives, many do not understand how to vet online and other information sources. They do not all know that some sources are more authoritative and reliable than others; that they should consult primary sources instead of relying just on secondary ones; that they must be thorough and cross-check sources against each other; and that not everyone who publishes something is a true expert on that topic. While some information literacy skills are embedded in legal writing courses, we need to do more, and in more places throughout the curriculum. For example, we should teach students about FactCheck.org’s Guide to Testing Evidence.²⁵ We should give more research assignments that require students to grapple with conflicting authority. We should share examples where attorneys and judges have relied on faulty information, and then discuss how those mistakes could have been avoided. We should discuss our own research techniques, and be candid about research mistakes we’ve made.

• Doubling down on critical thinking. Professors must ensure that they are teaching students to think critically. Critical thinking is deep thinking that helps us question whether information presented is reliable, fact-based, evidence-based, and unbiased.²⁶ In February 2020, Scott Fruehwald released How Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton Asked Why. In that book, he reminds us that critical thinking can help overcome superficial and biased thinking; help determine when more information is needed; help understand multiple perspectives; and help recognize manipulation. Consequently, helping students master critical thinking is a powerful tool to promote candor.

As with most complex issues, no one idea will solve the problem. Instead, we need a panoply of ideas that will help students to understand the power of candor in their own lives and careers and for the legal profession. I hope you will accept the challenge and join me in generating and applying more ideas to promote candor in our classrooms.

Endnotes

¹ Darby Dickerson, The Power of Words, AALS News 1 (Winter 2020).
² The Blacklist Declassified, https://blacklistdeclassified.net/2012/06/06/%f0%9f%94%b4-easy-search-s6-scripts-%e2%ac%85%ef%b8%8f%ee%81%8a/#thirdestate (visited Mar. 1, 2020).
³ Dictionary.com, https://www.dictionary.com/browse/candor (visited Mar. 1, 2020).
⁴ Model Rules of Professional Conduct Rule 2.1.
⁵ Id. at Rule 3.3.
⁶ Id. at Rule 4.1(a).
⁷ Id. at Rule 3.8.
⁸ Richard Nordquist, ThoughtCo., Glossary of Grammatical and Rhetorical Terms, Definition of Spin in Propaganda, https://www.thoughtco.com/spin-communication-1691988 (updated Aug. 14, 2018).
⁹ Brooks Jackson & Kathleen Hall Jamieson, unSpun: Finding Facts in a World of Disinformation loc. 35 (Kindle ed. 2007) (quote cleaned up).
¹⁰ Sandra Braun, Political Spin, Britannica, https://www.britannica.com/topic/political-spin (Oct. 17, 2016); Wikipedia, Spin (propaganda), https://en.wikipedia.org/wiki/Spin_(propaganda) (visited Mar. 1, 2020).
¹¹ David Murungi et al., Beyond Facts: A New Spin on Fake News in the Age of Social Media, Twenty-fourth Americas Conference on Information Systems (New Orleans 2018), https://aisel.aisnet.org/cgi/viewcontent.cgi?article=1461&context=amcis2018 (defining “fake news” as “news articles that are intentionally and verifiably false, and could mislead readers”) (quoting Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election, 31 J. Econ. Persp. 211, 213 (2017)).
¹² Wikipedia, Astroturfing, https://en.wikipedia.org/wiki/Astroturfing#:~:text= (visited Mar. 1, 2020) (defining the “astroturfing” as “masking the sponsors of a message or organization . . . to make it appear as though it originates from and is supported by grassroots participants”).
¹³ Wikipedia, Deepfake, https://en.wikipedia.org/wiki/Deepfake (visited Mar. 1, 2020) (explaining that a deepfake is video that has been manipulated using artificial intelligence software to make it appear that a person is saying something the person did not actually say).
¹⁴ Cass R. Sunstein, On Rumors (Kindle ed. 2014); see generally Cass R. Sunstein & Reid Hastie, Wiser: Getting Beyond Groupthink to Make Groups Smarter pt. 2 (2015) (advising how groups can overcome polarization and cascades).
¹⁵ On Rumors, supra n. 14, at loc. 104.
¹⁶ Id.
¹⁷ Id.
¹⁸ Carl Sagan, The Demon-Haunted World: Science as a Candle in the Dark 303 (1997).
¹⁹ Doug Crandall & Matt Kincaid, Permission to Speak Freely: How the Best Leaders Cultivate A Culture of Candor loc. 180 (Kindle ed. 2017).
²⁰ E.g., Theodore F. Claypoole, AI and Evidence: Let’s Start to Worry, Nat’l L.J. (Nov. 14, 2019), available at https://www.natlawreview.com/article/ai-and-evidence-let-s-start-to-worry; Jason Tashea, As Deepfakes Make It Harder to Discern Truth, Lawyers Can Be Gatekeepers, ABA J. (Feb. 26, 2019), available at https://www.abajournal.com/lawscribbler/article/as-deepfakes-make-it-harder-to-discern-truth-lawyers-can-be-gatekeepers.
²¹ 7 Drexel L. Rev. 1 (2014).
²² See Mark A. Cohen, Why Is Law So Slow to Use Data? Forbes (June 24, 2019), available at https://www.forbes.com/sites/markcohen1/2019/06/24/why-is-law-so-slow-to-use-data/#43fdfc12b8eb.
²³ E.g., Jim Norton & George Divine, Statistics in Court: Incorrect Probabilities, Significance (Apr. 9, 2019), https://www.significancemagazine.com/science/622-statistics-in-court-incorrect-probabilities#:~:text=; Mona Ledied, Misleading Statistics Examples—Discover the Potential for Misuse of Statistics & Data in the Digital Age (Aug. 8, 2018), https://www.datapine.com/blog/misleading-statistics-and-data/. See generally Jackson & Hall, supra n. 9, at ch. 6.
²⁴ Peter Steiner, Cartoon, New Yorker (July 5, 1993); see Wikipedia, On the Internet, Nobody Knows You’re a Dog, https://en.wikipedia.org/wiki/On_the_Internet,_nobody_knows_you%27re_a_dog (visited Mar. 1, 2020).
²⁵ Jackson & Hall, supra n. 9, at loc. 1808–1823 & chs. 7–8.
²⁶ Adam M. Persky et al., Developing Critical Thinking Skills in Pharmacy Students, 83 Am. J. Pharm. Educ. (Mar. 2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6448513/.