I’ve been in trial the last couple of weeks, and I am just now coming up for air. I see the debate has continued in my absence. Alas, yet another confirmation (as if another were needed) that I am not indispensible. Thank you to all of our posters, commenters and lurkers, who continue to make this site one of the most robust stops on the internet vis-à-vis the intelligent design debate.
We live in a post-modern world, and the defense position at trial last week brought that dreary fact forcefully to mind.
Without going into detail, the trial was about a contract my clients (the plaintiffs) signed in 1996. The defendant received the benefits of his bargain and was content for 11 years. Then, when the contract turned to my clients’ benefit in 2007, the defendant refused to pay. Instead, he hired one of the largest law firms in the world (over 600 lawyers) to get him out of the contract, and these last several months his team of lawyers and paralegals (six strong at last count) have submitted literally hundreds of documents to the court in a feverish effort to convince the judge that – though the defendant said nothing for 11 years – the contract was unenforceable from the beginning.
Well, that is not entirely accurate. I should say this is the position on which the defendant finally settled after various other theories failed. At first he claimed the contract was valid, but my clients’ calculations were wrong, and they owed him money. When that didn’t work he claimed the entire transaction was a sham, and he knew it from the beginning. When it came to light he had certified the transaction to the IRS in 1997, his position changed yet again. Now, his position was that he thought the transaction was valid in the beginning, but after he reviewed the documents in connection with this case he learned he had been hoodwinked. The transaction was always a sham, but he just hadn’t known it all these years.
In golf a “mulligan” is the friendly practice of letting a player get a “do over” if his tee shot goes awry. I suppose the defendant’s lawyers thought I was going to give them a mulligan and not mention at trial the varied and inconsistent positions they had taken. But over a million dollars was at stake, so I decided I would pass on the mulligan, and when I had the defendant on the stand the cross went something like this:
Q. So if I understand what you’re saying, you didn’t know there was any irregularity with the transaction when you certified it to the IRS in 1996.
A. That’s right.
Q. In fact, you’re telling me that you never knew there was the slightest problem with this transaction until you reviewed the documents produced in connection with this case.
A. That’s right. I never knew.
Q. I have just placed in front of you the sworn affidavit you signed last September. Do you see paragraph three there? It says, “I believe [here I raised my voice for effect], AND HAVE ALWAYS BELIEVED, the transaction was a sham.” My question for you is this: Just now you testified under oath that you NEVER believed there was anything wrong with the transaction. But last September you swore out an affidavit in which you said you ALWAYS believed the transaction was a sham. Help me out here. How can both of those sworn statements be true at the same time?
This, of course, is the trial lawyer’s dream scene. He has caught the other party making statements that simply cannot be reconciled. Both may be false (which is the case here), but there is no way both can be true. Needless to say, my clients are happy today.
What does this have to do with post-modernism? Just this. Over the last few months I have often wondered if the other side really believed they would be able to get away with just “making it up.” That question was answered by an incident that occurred on the second day of trial. My paralegal was in the back of a crowded courthouse elevator. One of the defendant’s lawyers and his paralegal were in the front, and apparently they did not know my paralegal was there, because she overheard them talking about the case. The lawyer said, “They are presenting their version of reality and we are presenting a competing version of reality. The case will come down to which version the judge finds compelling.”
I never thought of myself as “presenting a version of reality.” My goal was to just get the facts out about what happened, because I have always believed that if the judge knew what actually happened we would win. It turns out that I am hopelessly old-fashioned about these things. In our post-modern world there are no immutable “facts” for the judge to know. There are only competing “narratives,” and she will make her decision based upon which narrative she finds most “compelling.” And in developing his “narrative,” a lawyer need feel no obligation to quaint outdated notions such as “what actually happened.” There is no “what actually happened,” because reality is not fixed, objective and immutable. No, reality is malleable, subjective and constructed.
I like to say that reality is the practical wall you smack into when you’re theory is wrong. And thankfully trials are nothing if not practical endeavors. No matter what a post-modernist might say about “all reality is subjectively constructed,” the truth of the matter is they all look both ways before crossing the street. And it turns out that judges really do try to determine “what actually happened,” and another name for “presenting a competing version of reality” is “lying under oath,” which judges tend to frown on (as the defendant found out to his dismay).
I hope our opponents who post comments on this site will keep this story in mind. I hope they think about it the next time they are tempted to write in response to one of the arguments an ID proponent makes, “Well, that’s your reality. My reality is different.” It is such a hackneyed, trite and dreary expression. Worse, it is based on a self-evidently false premise, and, as the defendant found out, it will get you in trouble if you take it seriously.