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:
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.
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.
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/.