Response or Comment
Professor William Simon argues that the principal professional responsibility of all lawyers should be to "seek justice."' He defines this as pursuing the client's rights, but not the client's interests, if those interests are incompatible with the "truth." As a concrete example of this approach, Professor Simon states that it would normally be inappropriate for a lawyer to subject a vulnerable, but accurate, witness to cross examination intended to create the impression that the witness' testimony was mistaken.
In my view, Professor Simon's position would not really further "justice" at all. In these brief comments, by focusing on the likely impact of his ideas on criminal defense practice (from which many of the compelling examples in the debate about lawyers working against the truth are drawn), I suggest that Professor Simon's ideas are misguided. Even if enacted as binding rules, they would likely be evaded or ignored. To the extent that his suggestions had effect, however, Professor Simon would force lawyers to think like judges, assessing the evidence for and against their clients and modifying their "style of advocacy" accordingly. We should reject this pseudo-judicial role in favor of the traditional role of zealous advocate. I.
David Yellen, Thinking Like a Lawyer or Acting Like a Judge: A Response to Professor Simon, 27 Hofstra L. Rev. 13 (1998).