Michael Sean Quinn*

a deposition not long ago, I was asked whether I though an insurance company
defending an insured had a duty to be truthful with the insured.  I answered that I was sure that the insurer
must not lie to its insured and should not makes statements to the insured
which, if it were thinking reasonably, would at least probably believe were false, and/or should believe are false. 
“All well good,” said the depositioner “but I asked you whether the insurer
had a duty to be truthful. Isn’t it that case, that the insurer must not be
untruthful with its insured?”

Without thinking, I simply blurted
out, “Well, that depends on the meaning of the word ‘untruthful.’”  I felt like Bill Clinton. The depositioner then said, “OK, tell me about that, please.”  By then it
had already dawned on me that there was a kind of trap built her questions and
my answers.  I came to realize that in a
subtle way, ordinary language with respect to telling the truth, being truthful, lying, untruthfulness, and being untruthful is not a perfectly
symmetrical set but a bit of a pile epistemological ideas.

To be sure, to tell lies is to be
untruthful, and to assert a true proposition to another is to be truthful,
or—at least—it sounds like it. But maybe not. What if I assert to someone a
true proposition, which I know he will not understand, am I being truthful? I
am inclined to think not, at least under many circumstances.  If I am right about this,
then being truthful is different than simply asserting truths. On the other
hand, if I am in the presence of a person, and I have a true proposition in
mind but don’t assert it, am I being untruthful?  Obviously not.

But suppose the proposition pertains
to a service I am rendering this person, so it is one he needs to hear about.
Am I being untruthful? Surely not, if I simply forget to mention it, or I
mistakenly believe that this is not something he needs to know, and it will just
upset him, if he hears it. On the other hand, if I systematically and intentionally refrain
from telling him truths relevant to serving him, then it might sound like I am
being untruthful.  One might call this an “untruthful omission.” It surely would be
being untruthful if the person for whom I am a steward asked me questions but I
intentionally manage to avoid giving him answers, though never out-and-out lying.  This point, in at least extreme cases, is
nicely illustrated by idea of half

In any case, these points illustrate
the odd fact that one can be truthful in a literal sense (“He never speaks
anything but the whole truth.”), but also be untruthful in a less literal but
also important sense (“He doesn’t always tell the whole story, even to
her.”)  Of course, not telling the whole
story can be an accident, a blunder, a pattern resulting from habit, or systematically poor memory or
something specifically intentional. These various grades are significant
because an isolated accidental happenstance would not count as a person being
untruthful, whereas cases resulting from deliberate intent would.

In dawned on me in that deposition
that my interlocutor was trying by semantic distinctions to set up a rhetorical
disaster zone for his target and that I was being enlisted as his foot-in-mouth
soldier.  I learn new things about legal
dialogue, legal discourse, arguments of law and fact, and about the subtleties of the use of
language in and near courts all the time. 

*Michael Sean Quinn, Ph.D., J.D.

1300 West Lynn Suite 208

Austin, TX 78703

Office Phone: 512-296-2594
Fax: 512-344-9466


Originally posted on 11/03/2016 @ 5:31 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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