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Tuesday, March 06, 2007

Lubet in The American Lawyer

Do take a look at Steve Lubet's (Law, Northwestern) new article in The American Lawyer.  Here's a taste:

When Ginnah Muhammad stepped into a Hamtramck, Michigan, courtroom last October, she had no reason to think that her religion would have anything to do with the outcome of her case. As a conservative Muslim, she wore a full veil (or niqab) that left only her eyes exposed, but that surely seemed irrelevant to her garden-variety and decidedly secular small claims dispute with Enterprise Rent-A-Car Company. Judge Paul Paruk saw things differently, however, eventually dismissing Muhammad's case because she refused to remove her veil.

According to the transcript, Paruk initially sent his court officer to request that Muhammad take off her niqab while she was seated in the courtroom. She declined and approached the bench fully veiled when her case was called. Paruk then politely insisted that she bare her face: "One of the things that I need to do as I am listening to testimony is I need to see your face, and I need to see what's going on. And unless you take that off, I can't see your face, and I can't tell whether you're telling me the truth or not."

And once he gets you paying attention, given the egregious facts of the case, he delivers his real message:

It is largely a myth, however, that judges, or anyone else, can reliably differentiate between honesty and mendacity simply by picking up visual cues. Studies have consistently shown an extremely high error rate in recognizing deception, even among professionals who pride themselves on the ability to weed out deceit. One set of tests, for example, was given to judges, police officers, trial lawyers, psychotherapists, CIA agents, and customs examiners, and no group was able to identify liars at a rate better than 50 percent.

Unfortunately, most people are deluding themselves when they claim to be good judges of character, or that they can spot liars on sight.In most cases they simply mistake indicators of nervousness (stammering, fidgeting, blinking) for deception-or signs of self-confidence for honesty-often with predictably disastrous results. There is, however, one exception to the rule, as I learned when writing Lawyer's Poker: 52 Lessons that Lawyers Can Learn from Card Players. Successful professional poker players can, and do, accurately read their opponents' intentions, figuring out when they are bluffing, when they are holding winning cards, and exactly what it will take to sucker them into losing bets.

Posted by Ethan Leib on March 6, 2007 at 09:51 PM in Article Spotlight | Permalink


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So in other words, in a strictly controlled environment where there are only 2 possible outcomes (good hand-bad hand), people are good at "reading" one another if they have enough experience.

In a courtroom, where one's emotions could be influenced by a hundred different things, you do no better than if you were flipping a coin.

In short, I guess this is why we have credibility witnesses and don't play poker in courtrooms.

Posted by: jps | Mar 7, 2007 9:56:35 AM

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