Dressed to deceive

She: You’re meeting my parents tomorrow night, so wear a suit.

He: A suit? I lead a rock band. I don’t have a suit.

She: Borrow one. My parents are old school. They want me to marry a banker or insurance executive. So look like one.

He: I’ll just tell them I’m a banker. OK?

She: Of course not. Lying is unethical!

That’s pretty close to the scenario in Depp v. Heard, a trial that just ended in a Virginia state court.

It’s a pop culture phenomenon. I’m out of that loop, but every morning I get the New York Times delivered to my doorstep. I normally just glance at the Thursday Style section. (Fashion’s not my passion.)

But a recent article in Style caught my eye. It was about the trial on the reciprocal defamation claims between actor Johnny Depp and his ex-wife, actress Amber Heard. He wants $50 million, she doubled him back at $100 million. Unlike their thousands of fans, I knew little about the litigants or the case, which turns out to involve ultra-sordid accusations flying back and forth about physical abuse, verbal abuse, sexual abuse, booze and cocaine, fecal matter on the marital bed, and graffiti written in blood.

And worse: Heard had allegedly called matinee idol Depp “an old fat man.” Brutal.

But the Style piece focused on an aspect of the trial that I found disturbing: how their lawyers had – apparently – told the two protagonists how to dress for trial. Times reporter Vanessa Friedman wrote:

“To counteract preconceptions of the star players as squabbling hysterical celebrities with skewed value systems and distorted morals, they had to don the camouflage of trust. The clothes we subliminally associate with adulthood, responsibility and reliability. In a word: suits.”

Ms. Friedman elaborated:

“You’ve heard of dress to impress? This is dress to suggest.

Both appeared notably … sober, at least judging by the clothes. In a trial that turns in part on drug and alcohol abuse and related extreme behavior, including physical violence, that is no coincidental thing.

Thus in one corner: Mr. Depp, a man who tends to be rock star-meets-gypsy king, in three-piece suits in navy, gray and black, vests always fully buttoned up, tie tucked in, a silk pocket square displayed in his left breast pocket. The silver skull jewelry that has been his signature is toned down; the scarves and desert boots left behind.

It’s not exactly Wall Street functionary – the dark shirts and abstract print ties speak to a different cinematographic stereotype – but it’s pretty close to prosperous burgher. Even his hair is pulled back neatly in a ponytail, as if to underscore the fact he has nothing to hide: not his eyes or his face or his truth. A rager, as the defense suggests, with some uncontrolled “monster” (as the text messages submitted as evidence termed it) within? As if.

In the other corner: Ms. Heard, similarly suited in classic, muted tones of gray and navy. She wears trouser suits or skirts to the mid-calf; blouses buttoned all the way up, often with ties or pussy bows; belts and pumps. Tasteful, but not telegraphing expense. Her makeup is subtle; her jewelry, small. Her hair is done in a series of complicated 1930s updos, braids and buns, the occasional tendril just escaping its bonds. Unstable, in the words of the prosecution? A fantasist? Clearly not.

I doubt that either Mr. Depp or Ms. Heard had come up with their own ideas about how to put on this charade. I suspect their respective lawyers (with likely input from jury consultants) concocted this scheme.

Is this ethical?

If this “evidence” were presented via testimony (“I’m a banker”), the lawyer offering it might be subject to severe sanctions.

The ABA’s Rules of Professional Conduct, Rule 3.3(a), provides: “A lawyer shall not: (1) knowingly make a false statement of fact or law to a tribunal . . . or offer evidence that the lawyer knows to be false.”

California Business & Professions Code § 6068 provides: “It is the duty of an attorney to do all of the following: (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

And Business & Professions Code § 6128 threatens time in the pokey: “Every attorney is guilty of a misdemeanor who either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.”

“Evidence the lawyer knows to be false.” “Artifice.” “Deceit.” One or more of these appellations seems to fit pretty well here.

Is “dressing to suggest” as bad as saying it out loud? Maybe. As Ms. Friedman put it, “The outfits worn in court by Johnny Depp and Amber Heard give their own testimony.”

You’re probably thinking, “Hey, every trial lawyer tells his client and his key witnesses how to dress for court. It’s malpractice not to! And that’s never been treated as unethical.”

Indeed, a criminal defense lawyer provided this example: “Say I represent a woman charged with soliciting for prostitution. When she was arrested, she was wearing a micro-skirt and a sheer blouse. But when she takes the stand, I’ll put her in an outfit as close to a nun’s habit as I can get. No judge or prosecutor has ever threatened to report me to the State Bar for that.”

And sometimes dressing down works better than dressing up. A lawyer representing a banker charged with embezzlement might tell his client to shed the suit and put on a cardigan and loafers – to look more like a juror’s kindly uncle.

Ms. Friedman opined:

“The right to wear what you want in court is part of the right to a fair trial. And as clothing can affect perception in a negative way, it can also work to an individual’s advantage. It allows you to continue to represent your position, even when you aren’t on the stand; when you are just sitting silently in place. As a result, an entire subspecialty of the styling profession has developed focusing on courtroom attire.”

“An entire subspecialty” – in tricking juries?

Does such artifice actually affect juries? Some jurors might see through it, but for many, it might have at least a subliminal effect. It’s fair to assume that lawyers and clients wouldn’t spend time and money on it if it didn’t matter. Recall some of my previous columns, where I’ve described research showing that juries are often misled (not helped, as the law presumes) by the demeanor of witnesses – which can also be faked by experienced liars.

On occasion, a clever lawyer might turn a suit ploy against the opposing party, by asking on cross: “So, Mr. Depp, just when did you buy that slick Armani you’re wearing? Or did you rent it for the trial?” Not much use in this case, when both parties are vulnerable to this.

No, it’s time to call it what it is – rank deception - and somehow put some limits on it.

But how? It’s not exactly like an oral lie. Saying out loud “I’m a banker” is – in the Depp case and my she-he example above – an out-an-out falsehood, and there’s no excuse for it. But dressing up might have an innocent meaning. Someone might “dress up for court” just like they “dress up for church” – to show respect for the institution. So donning a suit might be an ambiguous statement, sending either a proper message (respect) and an improper one (“I’m not who you think I am”). Can either a judge presiding over a trial or a State Bar investigator tell the difference?

In some cases, it might not be that hard. Like the present one. You don’t need a suit to show respect. If Depp and Heard had worn clean, casual clothing from their regular wardrobes, wouldn’t that have been respectful- but-truthful?

Maybe there’s no good answer to these questions. Maybe monitoring this sort of deception is simply not feasible.

But still, it bugs me. It presents the public with a bad image of our trial system – and of our profession. I don’t want the public to see lawyers as “shysters”: people who employ fake images to manipulate fact-finders.