R.I.P Facts. So long Truth.
I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
Thomas Jefferson, 1789.
Our society has more information at our disposal than at any time in history, yet we have become willfully ignorant of facts. Opinions change, facts do not. In the last few election cycles, false stories parading as facts drove public opinion. The founding fathers’ notion that truth would rise to the top in the marketplace of ideas fails in a society where we don’t hold speakers accountable for spreading untruth. Fake “news” runs so rampant that internet search engine Google and social media provider Facebook try to monitor the truth and limit the content of news we receive.
There was a time when journalists, the fourth estate, were the guardians of truth. Journalism has been replaced by media companies devoted to entertainment, with a bigger interest in protecting advertising dollars than exposing falsehoods. The fourth estate has been supplanted by a Fifth estate- bloggers and paid commentators with an agenda to promote- facts are sacrificed on the altar of profit. Organizations that fact check like Snopes and Factcheck are ignored. Or worse, accused of having an agenda of their own rather than looking for truth. While there may be many opinions, there can only be one fact. Except now, there isn’t. We have alternative facts.
What does any of this have to do with jury trials and the lawyer’s craft Gentle Reader? The right to trial by jury was so important to early America that its impediment was one of the reasons cited in the Declaration of Independence for our revolution. It is a right protected by the constitution. Jury trials are supposed to be a search for truth. When facts have alternative counterparts, the truth itself becomes subject to interpretation.
Fictional character Horace Rumple called a criminal trial a pretty blunt instrument for learning the truth. Perhaps he was right. I have seen cross examination, often called the greatest legal invention for discovering the truth, used more for theatrics and persuasion than truth discovery.
I tell every new client that the truth only matters in court if we can prove it. Because I represent plaintiffs with the burden of proof, that really means that there is no truth if we can’t show facts to twelve strangers (or less in federal court.) The word “verdict” is translated from Latin “Veredicto” which means to speak the truth. How then, can we have truth in our verdicts if facts don’t matter?
Lawmakers inhibit the power of juries to speak the truth. They put limits on verdicts so that the truth of a verdict isn’t always the whole truth and nothing but the truth. Damage caps are legal limits on what an plaintiff can recover, regardless of the harm. In other words, the law willfully sacrifices truth to protect some group or another. To a cynical eye, truth is created by political donors.
The law keeps some facts from jurors, through evidentiary rules. Unfortunately, this can value expedience more than truth. Tort lawyers are barred from telling juries that a defendant has insurance, for example. Defense lawyers can’t tell juries that an injured plaintiff’s medical bills got paid by health insurance. We don’t tell civil juries about a defendant’s prior bad acts in most circumstances.
We justify this with the notion that some facts are too prejudicial to hear of course, but in so doing we are left with truthful verdicts based on polite fiction instead of fact.
When limiting the truth doesn’t work, some attack the judicial system. The term “activist judge” has been in the news, but it often means that a judge has disagreed with the person using it. We can’t define judicial activism but we know it when we see it. Like indecency.
Our president criticized rulings which went against him as judicial activism, which some commentators view as an insidious attempt to undermine this branch of government and destabilize the court system. If the court system is questionable, the very truth that courts seek is suspect as well.
Juries decide the facts and judges decide the law in a case. (Juries used to decide both, but that is another story for another day.) I am waiting for a lawyer to claim that the facts a jury decided were really alternative facts, and the real verdict was for millions of dollars rather than the few thousand shown on the verdict form. Recovering on an alternative judgment would spin off an entirely new field of debt collectors. Lawyers can now console a client after a disappointing result by telling him or her that they didn’t lose at all- they simply got an alternative verdict.
Perhaps truth isn’t really dead. It just doesn’t matter anymore. That is merely my opinion of course.
©2017 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He also exists in alternative fact where he weighs less and has more hair. Comments or criticisms about this column may be sent c/o this newspaper or directly to Under Analysis via email at firstname.lastname@example.org.