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If stupidity got us into this mess, then why can't it get us out? - Will Rogers
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I could hunt among the ancient treatises on rhetoric to illustrate this point, but I prefer a more modern example. Here is Professor Jack Balkin, talking about a torts case that we probably all studied in law school. Every torts professor has a favorite hypothetical about causal responsibility---some wildly improbable and outrageous chain of events triggered by the defendant that somehow leads inexorably to the plaintiff's injury. I have always been partial to the facts of United Novelty Co. v. Daniels. In Daniels the defendant negligently set the nineteen-year old decedent to work cleaning a coin-operated machine with gasoline; the decedent worked in a small room warmed by a gas heater with an open flame. The gasoline vapors surrounding the machine ignited when a rat ran from the machine into the flame, caught fire, and then ran back toward the machine, causing an explosion that killed the decedent. Naturally, the defendant company argued that it was not causally responsible for the freak accident. Nevertheless, the court upheld a jury verdict against the company because it could have foreseen that setting the decedent to work in the room under these conditions was unduly dangerous.
The opinion in Daniels takes up barely a page in the reporters, but within this miniature one can find many of the most common structures of argument about human moral responsibility that occur in legal discourse. Consider, for example, the arguments that the defendant company might make (and probably did make) on its behalf:
1. The explosion was caused by the unpredictable movement of a rat, not by the defendant's negligence.
2. When the decedent began cleaning the machine with gasoline, it was completely unforeseeable that a rat would jump out of the machine, run headlong toward an open flame, catch fire, and then run back precisely where it could do the most damage.
3. Decedent was at fault for cleaning the machine with gasoline in the first place. The decedent must have known of the danger when the decedent voluntarily began to work.
Next consider the plaintiff's likely responses:
1. Although the rat was the immediate cause of the explosion, the real cause was the defendant's ordering the decedent to work under unsafe conditions.
2. It is completely foreseeable that if you set someone to work in a small room filled with gas vapors and an open flame, there is an unacceptable risk of an explosion.
3. The decedent cannot be held responsible for the explosion, because the decedent was following the orders of the defendant employer and was a minor.
As one would expect, the defendant's arguments are designed to minimize the defendant's causal, legal, and moral responsibility, while the plaintiff's arguments are designed to enhance them. More importantly, however, each side recharacterizes the facts to support its position, emphasizing some details, minimizing or even omitting others -- creating a coherent portrait of the situation from the raw materials of experience. Like all pictures, these characterizations are selective, for to record experience is always also to reorder and even to suppress it. In the second argument presented above, for example, the defendant describes the situation in minute detail, while the plaintiff speaks in more general, abstract terms. In this way each side can make plausible its claim about the foreseeability or unforeseeability of the decedent's injuries. Balkin uses the terms "picture" and "portrait" instead of "story," but he is talking about lawyers and the trial process in the same way that we have been. "Story" is more descriptive of the rhetorician/dramatist/troubadour. "Picture" is metaphorical, but also helpful. Manuals on photography tell you to decide what will be the main subject of your picture and tell you to choose a point of view that will emphasize that subject.
When a witness describes a scene, you want to use enough detail to make the jurors have a mental picture. When proving how the accident happened, plaintiff's counsel will ask the witnesses to start by talking about the workplace and the boss's control of people's schedules and duties. By the time the decedent gets into that room, the plaintiff wants the jury to picture acts being directed and controlled by others.
There are two aspects to 'how you tell it.' The first is the rhetorical exercise of structuring the argument to lay the facts in a certain order and pattern. The second is understanding how principles of proof serve or disserve the advocate's effort to present the pattern.
In the incendiary rat case, both sides begin with accepted principles of personal injury litigation. The defense stresses that we are all responsible for our own actions. We all ought to feel good about having such a sense of responsibility and about expecting others to have it. Therefore, we will not hesitate to treat the plaintiff's decedent as we would want to be treated---as someone who freely chose a certain course of action---even when the consequences are uncompensated injury.
The plaintiff will stress the employers' superior knowledge and control of the situation---its power to affect events, including the power to put the decedent in a place of danger. We should, as community representatives, want to have and enforce rules about the exercise of such power.
Professor Balkin's article, however, is not about rat and gasoline cases. He shows how the basic positions I have just described, which he calls "individualist" versus "communalist," take a very similar form throughout the law of torts. Similar sets of ideologically based pairings can be found in contracts, property, or criminal law---indeed, every field of law that is shaped by the adversary system.
A litigator faced with two persuasive ways to describe the same facts may have a sense of insecurity or unease. If either formulation may be validated by the verdict of a jury, how will the jurors choose? The answer will lie in the ability of the lawyers on both sides and on the choices made by judges who preside at trials and review the results of trials.
Being able to render issues in these opposing, mutually exclusive pairings does not mean that legal rules are indeterminate or without principle. The statement of issues is paradigmatic, simply a structure to be filled in each case with particular factual content. When the content has been added, then juries and judges must exercise judgments based on their perceptions and, inevitably, their own sense of rightness. In our daily lives, we often say, "that's just a value judgment," or "that's just your opinion," meaning that all such judgments or opinions are unverifiable and therefore arbitrary. Yet, as lawyers, we must constantly embrace value judgments about such things as responsibility, "just desserts," and rights. We must exhibit evidence to jurors and make arguments to build images of reality and validate the opinions and judgments that we want the jury to use in deciding.
Nor, as we shall see, will there always be a bright line between appeals to principle and arguments about facts. The line that Aristotle tried to draw, separating ethical, logical, and emotional arguments from one another, has long since proven impossible to maintain. Similarly, the Aristotelian distinction between matters merely probable and those demonstrable has evaporated, at least in litigation, and probably in the sciences as well.
Whether we like it or not, jurors bring all their faculties to bear in making sense of a case: intuition, feeling, and attitude, as well as the ostensibly rational processes of inductive and deductive reasoning. Therefore, persuasion through evidence must reach all of these faculties. To return to the Hanley and Williams counsels, we are seeing the unity of rhetoric and theater.
I once wrote, Facts are mutable because we never see them in litigation. We see instead their remnants, traces, evidences, fossils---their shadows on the courthouse wall. The witnesses recount: They have perceived, do now remember, can express and want to tell the truth, more or less. Things--paper, hair, bones, pictures, bullets---parade by, each attached to a testifier who alone can give them meaning. At proceeding's end, the advocate will try to impose some order on all of this, and convince the trier that it makes a certain kind of picture. This passage summarizes the rules of evidence.
A witness is more or less valuable based on perception, memory, expression, and veracity. It is an article of adversary system faith that every witness should be tested on these four elements in the presence of the trier of fact. Departures from this rule are justified only as permitted by exceptions to the hearsay rule or by showing that the rule does not apply because an utterance is "not offered for its truth."
With respect to objects, the passage recalls familiar lore: an object must be sponsored by a witness who shows that it is something that the jury should consider. The defendant's fingerprint on a gun is dramatic but irrelevant unless a witness connects the gun, and the defendant's chance to touch it, with the homicide.
In our daily lives, we make decisions based on what we have seen and heard. In trials, we must make sure that every out-of-court statement that is repeated satisfies a rule. Is it offered for the truth of it? If so, is it nonhearsay because of Rule 801? If not, can it come in under Rules 803 or 804? Have we remembered to satisfy the personal knowledge requirement, which applies to hearsay declarants as well as to witnesses on the stand? To be a trial lawyer, you must so internalize rules, including the hearsay rule, that moving through a foundational showing becomes second nature.
The main point, however, is that it is misleading to talk about "the facts" as constituting some objective reality to be "discovered" in past time. The "facts" will be "found" by jurors putting together the tales of witnesses. In this pro-cess, the jurors will be guided by their internal attitudes as well as attitudes imposed by the court's instructions.
We can see this in another way. Suzuki, a writer on Zen, drew a series of pictures of an ox and a man, each picture framed by a circle. The last circle was empty and was titled "The Ox and the Man Have Departed." By the time we get into a lawsuit, the ox and the man are gone. We start with a blank circle---and must fill it with the evidence that we find.
Let us see how this works in the incendiary rat case. For our purposes, Balkin is wrong in saying that "the defendant describes the situation in minute detail, while the plaintiff speaks in more general, abstract terms." That may be the form of utterance in an appellate argument, but at trial the plaintiff has as much interest in factual precision and detail as the defendant.
In deciding the order of proof, along come the familiar concepts of primacy and recency. Start strong, because people remember beginnings. End strong, because people remember things that happened more recently. In the structure of a trial, first events and last events of a particular phase---such as the plaintiff's case-in-chief---hold jurors' attention.
To begin, we want an image of this room---and of its dangers. Jurors cannot accept a story unless they can envision it. The plaintiff's evidence assembles the locations and objects and then introduces the events. The events will seem to be a foreseeable consequence of the arrangement of the objects, for which the defendant is responsible.
The defendant's evidence will focus upon the decedent's choices and decisions. After focusing on these choices, the proof introduces the objects as logically placed to avoid foreseeable dangers. Note that I have put Balkin's third defense contention---contributory negligence---first. I would do this even in a jurisdiction that has abolished or limited contributory negligence. Stories are about "just desserts," and the defendant must, in order to win, displace responsibility onto the decedent for his own death. "I was careful enough" is not only defensive, but it invites the plaintiff to embark on the risk/cost/benefit calculus that paints the defendant into a corner.
We repeatedly play out the adversary process by example. Let us pause now to see it in this case. The defendant employer takes the stand and testifies about the room where the death occurred. What is the most important point for cross-examination? Without waiting to see how, or whether, the witness trips up, you should be able to choose. The most important point will be raised first, for primacy's sake. Moreover, the jurors expect that when you rise to cross-examine your opponent, you will inflict some damage.
The most important point must be one that you can make by cross-examination, without useless arguing with the witness. It must not be the sort of point that is better left to final argument. It must, in short, be nearly foolproof. It must be a point that tells your story rather than one that deflects or denies the other side's. In the suicidal arsonist rat case, the plaintiff's point is that the defendant set the scene. He will not likely deny it. Your strong opening on cross takes the defendant through the charts, pictures, and objects with which you began your own case, getting agreement along the way. One can imagine key elements of the cross-examination of the owner:
Q. You own United Novelty?
A. My family and I do.
Q. You run the business on a day-to-day basis?
A. I guess you could say that.
Q. No. Please tell me. Who runs the business?
A. I do.
Q. You hired Mr. Daniels?
Q. You hired all the people who work at the company headquarters?
A. All except the accountant.
Q. He comes in only once a week, and your wife chose him, right?
Q. If you see a machine that needs cleaning, you decide who will clean it and when?
Q. You have the power to say where machines are put on the company premises?
A. I guess that's right.
Q. Don't guess. Do you have the power?
Q. You are the man in charge?
Q. You can fire people who won't take directions?
A. I have done that.
Q. You tell people what to use to clean dirty machines?
You could think up dozens more questions, each of which shows a way in which this witness is in charge. The witness wants to tell you these things because he likes to think of himself as a person in charge. As long as you pitch the questions to that desire to be seen as important, you will probably get the answers you want. You can plot out this line of crossexamination before trial, taking care not to prolong it unduly.
But that is obvious, you say. Not so, say I. We make notes on a pad of paper as the witness testifies on direct. Usually, we draw a vertical line on each page---one side for notes of the testimony, the other side to make notes of points for cross. When the direct is over, we jump up and try to spear the witness on something in the direct that jumps up at us off of our notes. We forget our careful game plan. I have seen this done too often, and confess to having done it myself.
Hew to your planned cross. Use the surefire stuff. Then take a few "opportunity shots," and end strong. Remember recency.
Economy of motion is matched by parsimony of expression. The poet Stevie Smith wrote:
It is the privilege of the rich
To waste the time of the poor.
Lawyers think their privilege is to waste the jurors' time. The jurors will get even.
One evening in Umtata, South Africa, my friend Ken Frazier began teaching the trial advocacy program for students at the University of the Transkei. He started by asking each one to introduce himself or herself and to say a few words. Then he strode to the lectern of the classroom and said something like:
'Listen to you. I got here only today. I am just a black trial lawyer from Philadelphia, but I can't help noticing that most of you introduce yourselves timidly, tentatively. May-be it is the atmosphere we have created here without meaning to do it. Maybe it is a part of the political system here in South Africa. But let me ask you something. You are going down the road and you need directions, and you ask somebody and they say, kind of hesitantly, 'Well, I guess it's maybe, well, about a mile and then I think you turn right.' Then, you ask the next person you come to, and they say with great conviction, 'Go down this road one mile. At the BP station, turn right and go one-half mile. It's on the left. You can't miss it.' Which one of those two people are you going to trust? I'll tell you. You are going to trust the person who looks like they know what they are talking about and believes what they are saying.'
I think that makes the point.
* The above was excerpted and modified by the 'Lectric Law Library from 'Examining Witnesses' by Michael E. Tigar The Amer. Bar Assn. 1993. 315 pgs hrdbnd; Prod.Code 531-0093; $110. For more info call the ABA at 312-988-5522.
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