Knowing Why We Lie Helps Us Tell The Truth
How to convince our secret selves of the subjective truth
In civil litigation, knowing whether someone is telling the truth can be worth millions. In his book “Why We Lie,” author David Livingstone Smith, explores “the evolutionary roots of deception and the unconscious mind.” He suggests that, regardless of what a person communicates verbally, their physical expressions unknowingly reveal what they believe on a subconscious level. It means that when what we say is contrary to what we subconsciously believe, our expressions may betray us – but when our message aligns with our core beliefs, it can be deeply compelling.
Early humans thrived thanks largely to their ability to cooperate. Language helped. It allowed the formation of societies. Navigating a tangled network of social relationships became more important for reaching reproductive age (and finding a mate) than outrunning predators. Smith writes, “Sheer social complexity compelled our prehuman ancestors to become progressively more intelligent, and as they did so, they became adept at social gamesmanship; the wheeling, dealing, bluffing and conniving that I call ‘social poker.’”
What the author calls “social poker” sounds similar to the process of litigating a civil lawsuit, and any good poker player knows that bluffing is a crucial part of the game. It’s not that lying should be part of trial law, but bluffing is not so much about lying, but rather about concealing our true intentions. Before you conclude there is something nefarious – or even unethical – about concealing our true intentions, remember that the simple act of being polite often means withholding our unvarnished thoughts. In most social interactions, we call this “tact,” and it’s a trait we’re taught to admire. Smith writes, “Although we claim to value truth above all else, we are also at least dimly aware that there is something anti-social about too much honesty.”
Talk is cheap. Evolution favors activities that conserve energy, and compared to fleeing a predator – or even chewing meat – telling a lie takes little effort, and if done properly (and not too often), it can yield great benefits. If lying provides evolutionary advantages, then so does the ability to detect when others are lying. A good poker player can sense when another is bluffing. They pick up on subtle physical signs: narrowing pupils, an itchy nose. These are called “tells,” and they’re difficult to conceal.
Smith writes, “Words, therefore, are only credible when backed up by biologically costly actions or other signs of honest engagement.” Our bodies betray us when we consciously try to conceal our true intentions. Evolution, Smith argues, has concocted an ingenious workaround for these biological tells: self-deception. Most of our mental responses operate beyond our conscious awareness, he says. “Evolutionary biology implies that there is a region of our mind devoted to our dealings with other people that never divulges its secrets to conscious awareness.”
“If the evolutionary theory of self-deception is correct, we deceive ourselves to deceive others,” Smith writes. “There is a side of ourselves that we are not evolved to know.” It’s our secret self.
Again, I’m not trying to make the case that trial lawyers should learn to be good liars, but I am suggesting that, if a lawyer doesn’t truly believe on a deep-down subconscious level in their case, then what they say to opposing counsel – or a jury – will be betrayed by subconscious tells. If we can deceive ourselves to deceive others, then we can also convince ourselves to convince others.
One of my all-time favorite trial consultants, Robert Hirschhorn, signs all his emails with the entreaty “Believe in your case & yourself.” I agree. When I work on a case, I’m not trying to convince the opposing counsel of the value of the case, I’m trying to reinforce the convictions of my client’s secret self. When their subconscious mind is resolved, then their bodies will exude physical “signs of honest engagement.”
Justice is subjective. I’ve seen four mock juries watch the same presentation, and then, in separate breakout rooms, come to radically different conclusions about identical facts and deliver valuations differing by tens of millions of dollars. In a court of law, each verdict would have been valid.
When the truth is subjective, we can decide what we believe – but our conscious minds and our subconscious minds must be in alignment. If we cannot convince our secret selves, then we can’t expect to convince anyone else, but when we are in alignment, our expressions, our gestures, the timbre of our voice, and the look in our eyes will make our conviction unimpeachable.