'Alternative Facts' Are Nothing New For Lawyers
What about the client who stubbornly sticks to her version of the facts when it’s clear she is using alternative facts?
Most of us dinosaurs, at least those of us who watched TV back in the 1950s and 1960s (the term “streaming” as used today was unknown), are familiar with the show Dragnet, which ran for years. The main character was Sgt. Joe Friday, played by a stolid and always unsmiling Jack Webb.
Sidekicks included Ben Alexander first and later Harry Morgan (the beloved Colonel Potter of M*A*S*H in the 1970s). Sgt. Friday always led the investigations and asked victims, witnesses, and even the bad guys for “just the facts.”
The late Senator Daniel Patrick Moynihan said, “Everyone is entitled to his own opinion, but not his own facts.”
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Has the concept of alternative facts always been around, but now it’s front and center?
Most people seem to think that the concept of “alternative facts” is new, but is it really? I don’t think so, at least not for lawyers. How many times have you compared differing versions of the same situation and thought that someone, hopefully not your client, is on another planet?
Oftentimes, parties will agree on at least some facts with the remainder in dispute. What about the client who stubbornly sticks to her version of the facts when it’s clear she is using alternative facts?
What if the plaintiff says that the sun rises in the east and the defendant swears it rises in the west? Is that the defendant’s opinion or an “alternative fact,” in today’s lingo? What if the defendant is so credible in maintaining that fact that a jury decides to believe the defendant, despite jury instructions, centuries of scientific evidence, and personal observations to the contrary?
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Back in dinosaur days, when I tried criminal cases to verdict on a regular basis, one of the voir dire questions I and every other attorney would ask in those cases was about the TV show Perry Mason.
If you’ve ever seen any episode of the show, it was a “whodunit,” but what was always consistent about the show was that Perry’s client was always innocent, the D.A. Hamilton Burger was always chagrined, and someone in the courtroom audience or one of the witnesses would, in one dramatic fashion or another, identify himself or herself as the culprit. It was Perry who always pointed the finger at the guilty party that resulted in his client’s acquittal.
We’d voir dire on that, trying to make sure (or as sure as one can be in voir dire) that prospective jurors always understood that the drama of Perry Mason almost would never play out in our courtrooms. (Remember, this was forty years ago, long before CSI and other crime shows of more recent vintage.) Yes, the prospective jurors nodded that they understood the difference between fiction and real life. Yes, they would follow the law as the court gave it to them. Once on the panel, the jurors were instructed, often both at the outset and then again at the conclusion, as to what evidence to be considered and what was not.
Is the use of “alternative facts” going to make our jobs harder? It’s tough enough when clients have difficulty coming to terms with the reality of their particular situations, that the facts brought out in discovery, in deposition, show that the client’s case is not a winner, that the client needs to understand the situation she’s in, and that she will lose in court because applying the law to the facts, as we attorneys do for our livelihoods, will result in an undesirable jury verdict and little, if any, hope on appeal.
Now with the concept of “alternative facts,” however, will clients accept an attorney’s advice and recommendation on courses of action and likely results in court? We try our best to protect our clients from what is often their own worst enemies, e.g., themselves. But if they’re convinced that they’re right, then there’s nothing we can do to protect them from themselves. Off to jury trial they go, seeking “justice” and their day in court.
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Sometimes we have opposing counsel who refuse to believe anything we say, any documents we provide, or any witnesses who proffer a different version of the facts that their clients say. (We’ve all had opposing counsel that are so intransigent and unwilling to listen that we throw up our hands — or something else.) In these situations, all we can do (and what we’ve done) is just stop banging our heads in frustration and let the court or the jury decide.
Now, with the concept of alternative facts front and center, will alternative facts affect jury trials? Will juries do their sworn duty to follow the law as the court gives it to them and accept the facts based upon the evidence presented in court, and only the evidence presented in court? If the jury decides that the facts presented in court are not the truth and uses alternative facts to reach its verdict, is that grounds for a mistrial? One basis for jury misconduct is conducting an independent and unauthorized investigation about the facts of the case. So, if a juror uses alternative facts as the basis for her opinion about the case, is that juror misconduct? Is it jury nullification?
It’s one thing to satirize the concept of alternative facts that we see all around us, but is the seemingly casual acceptance of alternative facts in certain circles a slippery slope that leads to unintended consequences for how we practice law?
California Civil Jury Instruction (CACI) No. 1707 states, “A statement of fact is a statement that can be proved to be true or false. An opinion may be considered a statement of fact if the opinion suggests that facts exist. In deciding this issue, you should consider whether the average [reader/listener] would conclude from the language of the statement and its context that [name of defendant] was making a statement of fact.”
Liar, liar, pants on fire? Alternative facts? Minds are very hard to change.
Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
