Academic journal article Northwestern University Law Review

Rumpled Truth on Trial

Academic journal article Northwestern University Law Review

Rumpled Truth on Trial

Article excerpt

I.

Most readers of this journal surely will recognize the drill. On the first day of the first class of the first year in law school, one unfortunate student is called upon and asked to recount the facts of the first case. Nervously paging through the pages of the blue, brown, or red casebook, the beleaguered soul generally manages to locate and then read from the initial few paragraphs of the appellate opinion in question. The professor then begins the Socratic dialog, aimed at demonstrating the flexibility of law, or perhaps (depending upon the professor) its utter indeterminacy.

Whatever the professor's approach, however, it is nearly certain that she will regard the facts of the case as given. In most law school classes, and virtually all of those in the formative first year, "the facts of the case" are viewed as the rote preamble to the truly interesting discussion of the law. Facts are static, confined, inert, stationary, passive, inanimate. Of course, we need to know "what happened" in order to apply (or manipulate) the doctrine, but only in the sense that an opera must have a plot in order to proceed from overture to finale. Just as opera-goers do not expect to be surprised by the story, law professors breeze quickly past the facts.

And if facts are trivial, well, you can pretty much forget about trials. Based solely on the material in most first-year case books, one might easily conclude that appellate opinions--concerning torts, contracts, crimes, property-spring fully formed from some jurist's brow. There is hardly a suggestion that hard-working lawyers spent months or years investigating, assembling, managing, and finally presenting the facts of each case.' As most classes are taught, the facts of a case are easily determined while the law is always subject to interpretation.

Real lawyers know better. Law school has it exactly backwards. In actual litigation, the law is most often relatively clear while the facts are inevitably obscure and equivocal. It is the rare case that presents a truly difficult issue of law, but almost every case involves endless variations of fact. Of course, by the time a matter gets to the United States Supreme Court the facts have been more or less washed out of it-filtered and purged through the appellate process so that the stark legal issues may be addressed without complication. But even then the law-choices are relatively few, often no more than two.2

In contrast, there will be scores-maybe hundreds--of factual disputes in even the simplest of trials. Add to that the various shadings, inferences, combinations and permutations, and a picture begins to emerge of the infinite complexity of trials (a picture that is treated as little more than a palimpsest in most appellate opinions).

II.

Why are trials so little appreciated by both appellate judges and law professors? Perhaps it is because of the common and understandable misapprehension that there is such a thing as discernable truth which needs merely to be related accurately in order for a trial to work. In this conception--of both trial and reality-events occur in linear fashion and may be perceived and recalled with reliable precision, in order to be understood and acted upon by the trier of fact. Trial lawyers, in this model, would ideally act as facilitators, seeking out the necessary witnesses and producing them to tell their stories. Discrepancies, when presented, are explainable as either errors, misrepresentations, or failures of memory. The job of the judge or jury, then, is to harmonize any inconsistencies or, failing that, to "look the witnesses in the eye"3 and decide who is telling the truth.

One need not be a devout existential relativist or mad semiotician to realize that this bi-polar view of justice is just too neat to be real. Of course there is such a thing as objective reality and of course witnesses sometimes lie to achieve their own ends. …

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