To Puff or Not to Puff . . . (or When and How to Puff)

ADR Prof Blog by Andrea Schneider, Michael Moffitt, Sarah Cole,Art Hinshaw, Jill Gross and Cynthia Alkon.

I love teaching law students about misrepresentation in negotiation. I call this class, “lying like a lawyer.”

Of course, civilians (i.e., non-lawyers) regularly fudge the facts, let’s call it. While it might be nice if there were bright-line norms of scrupulous honesty that were universally followed, that’s never gonna happen.

I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable and even justified. Students in my Lawyering course regale the class with tales of their perfidy, sometimes with pride rather than shame. Movie and television audiences seem to find lying endearing when sympathetic protagonists do it. (I base this observation on the fact that writers use this hackneyed plot device over and over and over again.)

In the legal context, the rules prohibit misrepresentation of material facts but permit puffing about one’s interests, positions, and general opinions. Art’s research with Jess Alberts suggests that some lawyers think it’s appropriate to misrepresent material facts in some situations. This can lead to useful discussions about what are material facts in particular circumstances and how lawyers can ethically and effectively handle these situations.

I think that puffing is especially challenging for law students and lawyers because they generally feel a strong duty to protect their (would-be) clients’ interests, which they feel can override other concerns. They seem to have a particularly hard time with puffing because it is legally permissible. Some can justify it because they may believe that “everybody does it” and the other side expects it. Some seem to feel that failing to puff is a failure to do their duty to their client.

Given these circumstances, I think it’s important to help students consider why they might not want to puff. In my classes, we discuss the fact that puffing can harm the clients’ and their own relationships and reputations, lead to future disputes, and make them and their clients feel bad because puffing is inconsistent with how they see themselves. (FWIW, we discuss strategies recommended in their text, such as evasion, distraction, and refocusing the discussion, which I jokingly refer to as “lying like a lawyer,” though they involve neither misrepresentation nor puffing.)

Based on new research by University of St. Thomas Prof. Neil W. Hamilton, there is another reason for law students and lawyers to be cautious about puffing. It could hurt their career opportunities.

Hamilton surveyed lawyers responsible for hiring in big firms, small firms, county attorney’s offices, and legal aid offices in Minnesota. He asked respondents to rate the importance of various competencies in their hiring decisions. Overall, the most important competency was “integrity / honesty / trustworthiness.” This got the highest rating for big firm and county attorney’s offices and the second highest rating for small firm and legal aid offices.

Of course, this term could mean a lot of things and it isn’t directly related to puffing. I suspect that, in practice, lawyers distinguish between what they consider to be reasonable and unreasonable puffing. If so, some puffing is not necessarily injurious to their reputations and employment prospects.

But these findings should prompt students to consider whether they really are expected to puff, what puffs are acceptable, and the consequences to them and their clients.

(More generally, I like this article because it reinforces my preaching that students shouldn’t expect that they can go through law school on cruise control and expect to learn everything they need to be a good lawyer and get a job. It provides practical advice encouraging students to take responsibility for acquiring the competencies they will need.)

                       

John Lande

John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California.… MORE >