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

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.)

2 thoughts on “To Puff or Not to Puff . . . (or When and How to Puff)”

  1. John,
    I feel that your comments regarding your students “pride” in their tales of puffery were very spot on. For many of us the use of puffery becomes a kind second nature, reflex type response. Every person has their own limit as to what level of puffery they are willing to use in a professional setting. I think your discussion about how students may not realize the adverse affect puffing can have on a client relationship bring up a very interesting point. It’s easy to view puffing as advocating for your client, but, as you mention, it can be contrary to how the client wishes to be portrayed. However, in the moment I think it can be difficult to resist this reflex to “puff.”

  2. Thanks very much, Sean.

    I think that it is significant that I got these responses from students who were just halfway through their first semester in law school. Their accounts of puffing in their pre-law school lives included a wide range of work and personal situations. I don’t know of any anthropological analysis of this behavior but I suspect that it is very common in a wide range of societies. Part of the challenge is that puffing behavior ranges from pretty innocuous general claims with a substantial element of truth to slick efforts at intentional deception of vulnerable individuals.

    As a practical matter, I think that relying primarily on admonitions to be good and follow the rules are likely to have a limited effect on a broad segment of the population. I suspect that appeals to self-interests in self-image, relationships, advancement etc. are likely to be more effective. This is particularly true for lawyers who feel a strong duty to advance their clients’ interests by taking advantage of tactics that are legal and perceived as legitimate and commonly used. Of course, these strategies to reduce deception aren’t mutually exclusive.

    Thanks again.

    John

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