Authored by: Todd L. Archibald and Kenneth Jull*

The most persuasive litigators are the best storytellers: this principle has been the basis of this series, now in its twelfth essay, since its inception in 2011. Prior articles have addressed such topics as story-driven advocacy,1 the psychology underlying the effectiveness of such advocacy,2 opening statements,3 expert evidence,4 alternative dispute resolution,5 closing statements.6 the advocate as narrator,7 tribunal advocacy,8 key principles for discovery,9 demeanour evidence,10 and examination in chief.11 This essay focuses on the use of impeachment in weaving a compelling narrative.

The concept of truth is under siege. Witness books with titles like The Death of Truth: Notes on Falsehood in the Age of Trump and Weaponized Lies: How to Think Critically in the Post-Truth Era.12 Former President Donald Trump has ''wracked up a Guinness Book of World Records in falsehoods."13 The Washington Post reported in March 2019, that Trump ''averaged nearly 5.9 false or misleading claims per day in his first year in office. He hit nearly 16.5 a day in his second year.14

The era of fake news is not restricted to U.S. politics. In a campaign speech ahead of the 2019 Canadian federal election, Maxime Bernier asked, ''Are Canadians happy to subsidize 74 percent of our current immigrants?" A thorough fact-check by the CBC concluded that this statement was false, by using ''cherry-picked data" that did not reflect our immigrants' contribution to the Canadian economy.15 Reputable scholarly presses are publishing new philosophical texts with titles such as Post-Truth and The Misinformation Age: How False Beliefs Spread.16 Of interest during the COVID-19 pandemic, studies have shown that dishonesty increases with social distance.17 It is easier to lie over the internet than it is to lie to a person's face. A recent 2020 study in the financial industry showed evidence of widespread dishonesty, finding that over 92 percent of subjects lie at least once.18

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Originally published in the Annual Review of Civil Litigation

This article is Chapter XII in the series on the Art and Science of Persuasion commencing in 2011.

* The Honourable Todd L Archibald, B.A. (Hons.), LL.B., LL.M., C. Med. and F. CIArb. Mediator and Arbitrator, formerly a member of the Superior Court of Justice (Ontario), Adjunct Professor Osgoode Hall Law School and Kenneth Jull, B.A., LL.B., LL.M. Counsel at Gardiner Roberts LLP in Toronto, Adjunct Professor University of Toronto Faculty of Law, Osgoode Hall Law School.

Footnotes

1 Todd L. Archibald and J. Manuel Mendelzon, ''The Trial Advocate as Storyteller: The Art and Science of Persuasion" in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2011).

2 Todd L. Archibald and Shannon S.W. O'Connor, ''Cognitive Psychology in the Courtroom: The Art and Science of Persuasion — Chapter II" in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2012).

3 Todd L. Archibald and Joshua Tong, ''Impactful Trial Opening Statements in the Courtroom: The Art and Science of Persuasion — Chapter III" in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2013).

4 Todd L. Archibald and Jeremy Fox, ''Examining the Reliability of Expert Soft Science Evidence in the Courtroom: The Art and Science of Persuasion — Chapter IV" in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2014).

5 Todd L. Archibald and Christian Vernon, ''Incorporating Insights from Experimental Psychology and Behavioural Economics into ADR Practices: The Art and Science of Persuasion — Chapter V" in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2015).

6 Todd L. Archibald and Eric Brousseau, ''The Closing Address: The Opening Chapter in Trial Preparation: The Art and Science of Persuasion — Chapter VI," in Archibald, ed., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2016).

7 Todd L. Archibald and Mark Friedman, ''Advocating with Persuasive Authority: The Art and Science of Persuasion — Chapter VII" in Archibald & Echlin, eds., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2017).

8 Todd L. Archibald and Brett Hughes, ''Looking into an AdvocacyMirror: The Parallels Between Tribunals and Courts — The Art and Science of Persuasion — Chapter VIII," in Archibald, ed., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2018).

9 Todd L. Archibald, Roger B. Campbell, and Mitchell Fournie, ''Discovery as a Forum for Persuasive Advocacy: The Art and Science of Persuasion—Chapter IX" in Archibald, ed., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2019).

10 Todd L Archibald and Patrick Harris, ''Demeanour Evidence: Appearances are Often Deceiving: The Art and Science of Persuasion-Chapter X" in (2020) 51 ADV. Q 1.

11 Todd L Archibald and Chantelle van Wiltenburg, ''Conducting an Effective Examination in Chief: The Art and Science of Persuasion-Chapter X1" in Archibald, ed., Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2020).

12 Michiko Kakutani, The Death of Truth: Notes on Falsehood in the Age of Trump (New York: Tim Duggan Books, 2018); Daniel J. Levitin, Weaponized Lies: How to Think Critically in the Post-Truth Era (New York: Penguin Random House, 2016).

13 Bernard E. Harcourt in ''The Last Refuge of Scoundrels: The Problem of Truth in a Time of Lying" at 8, paper prepared for NOMOS and presented at the 2019 conference of the American Society for Political and Legal Philosophy on ''Truth and Evidence" at Princeton University on Friday, September 27, 2019, Electronic copy available at: www.ssrn.com/abstract=3433975.

14 Ibid.

15 Sadiya Ansari, ''The Extremism Machine" (Spring 2021) University of Toronto Magazine.

16 Lee McIntyre, Post-Truth (Cambridge: MIT Press, 2018); Cailin O'Connor and James Owen Weatherall, The Misinformation Age: How False Beliefs Spread (New Haven: Yale University Press, 2018) as cited by Bernard E. Harcourt in ''The Last Refuge of Scoundrels: The Problem of Truth in a Time of Lying", paper prepared for NOMOS and presented at the 2019 conference of the American Society for Political and Legal Philosophy on ''Truth and Evidence" at Princeton University on Friday, September 27, 2019. Electronic copy available at: www.ssrn.com/abstract=3433975.

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