When you find yourself listening to a speaker on a given topic, how often or how much effort do you put into discerning fact from opinion? Do you evaluate the credibility of the speaker or accept her statements at face value? Do you attempt to ascertain if the speaker has a bias or an agenda? If you are in a dialogue do you ask questions to clarify a speaker’s position, to isolate the facts that an opinion is based upon? For the layperson, this might be a laborious task to undertake and for the object of their attention this may be an annoying habit to exercise. For an attorney, it’s a tool of the trade. And it’s a hazard of the job that is difficult to leave at the office.

Facts are the currency of litigation. The fact finder can be either a judge or a jury when facts are in dispute between parties. A trial is the mechanism used by the parties to resolve disputed facts by presenting evidence to the fact finder. The judge or the jury applies the controlling law to the fact pattern it determines from the evidence presented at a trial. A verdict is rendered after a consideration of the evidence and arguments of counsel.

In the criminal law context, a defendant has the right to confront his accuser, to cross examine witnesses against him to test their credibility. This right is guaranteed to him by the Confrontation Clause of the VI Amendment to the United States Constitution. The VI Amendment was made applicable to the states by the XIV Amendment. The defendant’s right to cross examine adverse witnesses is a fundamental Judeo-Christian concept that can be traced to Acts of the Apostles 25:16 “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Fabrication, conjecture or belief is distinguished from fact by cross examination, the most powerful tool in the lawyer’s toolbox. Using the technique of cross examination to establish or dispute a fact is quite common. Have you had to question your child to determine how something was broken? Trying to isolate the facts in the original story by a series of follow up questions can be a tedious exercise. But as you weigh your child’s responses, view his body language and observe his emotion, you as the fact finder usually reach a reliable conclusion. It is this same process for the most part that is used in court to establish a fact pattern from oral testimony. What did the witness observe? How or why was the witness in a position to observe or experience the subject of his testimony? What circumstances existed that may have influenced the witness’ observation or experience? Is there a motive to fabricate or a bias that would slant the witness’ perception?

If a witness offers an opinion rather than fact, the “expert” has to have superior knowledge that is beyond the fact finder’s knowledge of a subject and it has to be helpful to the fact finder. The witness’ experience, training or education is probed, and subjected to cross examination, to determine if the witness is qualified to give an opinion on a given subject and to determine if the opinion is relevant to an issue in the case at hand. If the witness’ opinion is relevant and if the witness is qualified to give an opinion on a given topic the judge may admit the testimony. Then cross examination is utilized to test the facts the opinion is based upon as well as what methodology was utilized by the witness to reach his conclusion. The goal of the cross examination would be to determine what facts were assumed by the witness or not included in the analysis. The cross examination of the methodology would be to determine what if any error or assumption may have taken place in the process of analysis that resulted in the expert’s opinion. It is only then that the weight of the opinion is measured by the fact finder.

As most of you won’t find yourself in court, try to keep the significance of identifying fact from speculation when listening to a speaker. Consider the following statements:

I heard the shirt was blue.

I believe the shirt was blue.

The shirt was blue.

Which statement is the most credible to establish a fact – the color of the shirt. With a few questions to the speaker, one can quickly confirm that in the first statement the speaker’s source of information is from somebody else. It is second hand. The second statement appears to be the perception of the speaker gleaned from some set of circumstances the speaker was exposed too. The third statement may be from the speaker’s first-hand experience. She saw the shirt. Which statement is the most credible? This evaluative process is repeated over and over again depending upon the number of facts that are necessary to be proved to resolve an issue at trial.

Developing facts are not only important to determine what occurred or what somebody did but it is equally important when deciding what weight to give an opinion. The source of the opinion should be scrutinized. Be aware of the existence of a speaker’s bias or agenda. If an opinion is offered, try to determine what, if any, facts were considered.  Evaluating the source of the opinion can be informative. What are the speaker’s qualifications to analyze the facts and to develop the opinion? What is the speaker’s experience? What training in a relevant field has the speaker completed? Do you want mechanical advice from a lawyer or medical advice from a banker? Would you trust legal advice from a priest? Despite someone’s good intentions, the lack of training, education and experience in a given field should affect the weight given to his opinion. It doesn’t mean that the opinion is without some value, but it certainly should give the recipient pause for thought.

Is an anonymous source of information as reliable as an identified source? What does your experience tell you? It doesn’t mean that the former is not accurate and the latter is always accurate but it does certainly tend to tip the scale in one direction. One may be able to apply some form of analysis to the identified source of information however, without additional facts to corroborate the unidentified source of information one is merely operating on conjecture.

As I’ve listened to numerous political commercials and to candidates’ speeches over the past few weeks, it has occurred to me how much we take on faith what is being stated by the politician or to the contrary, how much we dismiss as folly, depending upon his party affiliation, absent much analysis. How much more helpful to voters would it be if the candidates were subject to rigorous cross examination to pin down the facts and to understand the basis for the opinions expressed? How about putting them under oath? I would find the debates more interesting and informative if this were the case. Much like witnesses that I’ve interviewed, I suspect that outright fabrication by politicians may be the exception but nuanced flexibility with the facts may be the rule.

Any opinions expressed in this article are those solely of the author. Topics discussed relate to legal matters in the public arena and legal questions that come up in conversation with Edgar County residents. The author has practiced law for the past 21 years in Edgar County. He is currently the Edgar County State’s Attorney responsible for criminal prosecutions as well as advising elected county officials and department heads.             

2017-03-13T14:48:37+00:00 March 3rd, 2015|Categories: From the Courthouse|Tags: , , , , , , , |