Misleading Courts: Comparing Lawyers’ Tactics in Australia and the United States

Lawyers in Australia criticise their counterparts in the United States for adopting tactics in trials they would eschew. By forbidding only false statements and evidence, however, the American conduct rules implicitly authorise the ploys criticised. The more restrictive Australian conduct rules ban misleading statements and misleading a court. In various settings this article compares what those four rules permit and forbid. Despite the ostensibly wider choice of available tactics, American lawyers’ advocacy is curtailed when judges decide an issue.They expect candour in ways that draw American practice close to the constraints on Australian lawyers.