“Gaslighting” is Word of the Year – What about “legal gaslighting”?

What could be more exciting than the announcement of Person of the Year (Time) or Sexiest Man Alive (People Magazine)?

No doubt, it is Word of the Year (Merriam-Webster Dictionary)!!

This year, the Word of the Year award goes to “GASLIGHTING”.  According to Merriam-Webster, in modern usage, gaslighting is “the act or practice of grossly misleading someone especially for one’s own advantage.”

At Bettison, this was an especially exciting development because we recently used “legal gaslighting” in a brief to identify how an opponent was making arguments. As we read through our opponent’s brief, we simply could not understand some of the arguments, certain statements of fact, and characterizations of the lower court’s analysis. We were confused, disoriented and wondering if WE were crazy.

And then we realized what was happening: LEGAL GASLIGHTING.

The mid 20th century definition of gaslighting explains why we were starting to doubt ourselves:

… psychological manipulation of a person usually over an extended period of time that causes the victim to question the validity of their own thoughts, perception of reality, or memories and typically leads to confusion, loss of confidence and self-esteem, uncertainty of one’s emotional or mental stability, and a dependency on the perpetrator.

Perhaps “legal gaslighting,” one might argue, is just what lawyers do. But that isn’t correct — it’s unethical and, when done in the context of legal briefing, violates the duty of candor toward the tribunal. We did a quick search on the internet to see if any scholarship was available on “legal gaslighting.” We found a University of Toronto Law Journal article by Alvin LH Cheung, author of “Legal Gaslighting.” The abstract explains:

Suppose that an authoritarian regime wants to make changes to legal norms or institutions to consolidate its hold on political power. Suppose further that the regime in question cannot simply ignore the domestic or international costs of doing so, and that it has an interest in responding to critiques of these changes based on liberal democratic norms and the rule of law. How can it do so?

One possible approach is to sow confusion and undermine the normative standards themselves – in effect, to ‘gaslight’ the domestic or international audience (or both). To that end, a regime might assert that the change it proposes resembles a ‘best practice’ from one or more other jurisdictions.

We decided it was appropriate to use “legal gaslighting” in our recently filed brief. We were compelled to name what we believed to be misleading arguments used to unfairly advantage our opponent:

It’s our hope — and expectation — that lawyers don’t resort to legal gaslighting. Instead they should make accurate arguments that correctly state the record and other courts’ reasoning and analysis. In law, zealous advocacy does not give license to gaslight. Any gaslighting — legal or plain — is unnecessary and unfair. It presents a reality that just doesn’t exist.

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