The Key Difference Between Conflicting Facts & Conflicting Conclusions

(upbeat music) - Hello, it's Keith Mittnik again, with another of my brush strokes podcast. (upbeat music) In this session, I wanna talk to you about something that came to me not that long ago during COVID, on a beach walk that has had profound consequences in the trials that I've had. And by the way, I've had now 11 jury trials during COVID. So I've had an opportunity to try these revelations out. This is the keeper. So I wanted to share it with you. It has to do with this something that's a little bit surprising even to lawyers. But when I say it, you'll know it's so. And it is, we all think in jurors, certainly think that trials are really a big fight over what the facts are. Kind of one big he said she said. Well, certainly almost every trials got some disputed facts. But if you really think about it, the vast majority of the disputes are conflicts over conclusions from the facts, not the facts themselves. Many of the facts are agreed to there. What I call fixed facts. But boy, is it unagreed to is what's the right conclusion from those facts. Now what is the importance of that realization that trials are more about conflicts over conclusions from facts than over the facts themselves? It's this. One of the biggest hurdles that we all face is bias on juries. And we work so hard during jury selection, assuming you're in a venue where you get to do lawyer questioning of the jury. We work so hard to figure out who has a bias against say money damage or significant verdicts or personal injury suits or medical malpractice cases or product liability cases or whatever the topic is. Some people just have strong feelings against that are going to have an unintentional impact on them if they sit on the jury because there are conflicting conclusions being argued. And those kind of things work like a sleeper agent and the juror doesn't even realize how it's impacting them when one person argues X and the other argues Y and Y happens to align with their preconceived notions. So after you work so hard in jury selection to identify who does have bias and establish the bias so that you have a valid challenge for cause. So the judge will remove them and they will not count against your precious few preemptory challenges. What we don't want to see happen is that clearly bias juror suddenly ends up not being removed for cause because the defense swoops in and says things like, well you'll certainly listen to the evidence. Yeah. And you will certainly base your decision on the evidence, won't you? Yes. So you can be fair and impartial. And I don't know what there was some confusion when this other lawyer was asking you questions but just for the record you are telling this court that you can be completely fair and impartial and base your decision solely on the evidence presented in the law. Is that right? Yes. And now all of a sudden they're arguing against your valid cause challenge. And in some states we have good law and vacillating that says that creates doubt and they ought to be removed anyhow because they've given different answers. But what if you could just head that off so it didn't work? That's the heading it off is where the power of this revelation came in. So let me give it to you, I tell it to jury. I introduce myself on the front end of jury selection and say, again, my name's Keith Metnik. I'm gonna be asking questions about life experiences, opinions, beliefs that you have that could potentially impact you if you were to sit on this jury. Cause what I call point, suffriction. We all have subjects where we, if we were asked to sit in judgment that it's a subject we've already formed some feelings about, some beliefs about, opinions about, that could put one side at a disadvantage if they were on the opposite side of that and the other side it was aligned with you would be at an advantage. Doesn't make an unfair person. It's just how we are. We all have feelings about these subjects. The question is, I need to find out whether you have any of the feelings that would create points of friction with this case or particular issues that will come up in this case and I will not know without asking you. But before I go into those subjects, let me tell you, cause I think it helps if you understand why I'm asking the questions I'm asking. A lot of us think that trials are one big he said she said. It's just a big dispute over facts. When in truth, while there's certainly gonna be a few things in dispute as a matter of fact, the biggest disputes in most cases involve disputes over conclusions from facts where the facts are in agreement but the two sides are arguing opposite conclusions from facts. So you know there's that saying the facts are the facts but those of us that spend time in court will say, not so fast, that's the beginning of the process, not the end and it is the space between the facts and the conclusions from facts where people's life experiences, beliefs, or opinions can have an unintentional but nonetheless significant impact. An impact on the conclusion. Let me give you an example. If we were having a criminal trial here, which we're not, this is a civil case but in a criminal case, if a prosecutor was trying to prove their case to the jury, and in order to succeed, he needed his star witness and the star witness was a police officer. And the outcome of the trial was gonna be tied to the jurors believing or not believing that police officer's testimony. And there's one juror who tends not to believe police officers, just flat, doesn't trust them. And there's a juror sitting next, right next to him, just to the left, who tends to believe everything police officers say. You can see how those two jurors who sat in the same courtroom in the same trial and listened to the exact witness at the exact time see the exact thing and they reached opposite conclusions from the facts. The facts didn't change, but those life experiences and beliefs altered the conclusion and therefore would alter their vote of guilty or not guilty. So you see how I say not so fast when folks say, the facts are the facts, I say that's the beginning of the process, not the end. And what I, that's called or I call that is the evidence plus reality. I call it the evidence plus reality because the reality of human nature is those kind of life experiences, opinions and beliefs can have an impact in addition to the evidence. The evidence is certainly if we had a pie chart, gonna be a big part of that pie chart, but there's gonna be a sliver there, maybe even more than just a sliver, but there's gonna be some slice in there of the whole that we call a conclusion that those feelings would come into play on top of the evidence. Does everybody understand what I'm getting at? Okay, let me give you one more example just 'cause then we'll move on to this 'cause I think these examples will make it go smoother and quicker and out of respect for you, I like to give you an idea why I'm asking. If we're having a competition to see you had the best pies and it was down to two pies and one was cherry filled and one was apple filled and I was picked out of the audience randomly to be the judge and it just so happens I'm not crazy about cherry pie. How many of you think the contestants would wanna know that fact? Do you all agree the only right thing to do would be to tell that information and let the contestants decide what to do with it? Likewise, do you agree that not only would it be the right thing for me to reveal that to the contestants, but also be honest with myself and not sugarcoat the potential impact it might have on me in spite of my very, very best efforts. Not that I'm going to take a dried up sorry pie that happens to be filled with apple in a wonderful succulent pie that happens to be filled with cherry and throw it over the filling. I wouldn't do that. But the closer they get to one another, the more likely it is that the fact I'm not crazy about cherry pie is going to come into play. I'm just wired that way. I can't help it. Does anyone think that if I were to say to the contestants under those circumstances, I cannot assure you that my decision is going to be based solely on the pies because it may be the pies plus the evidence plus. If it gets closer, it may come into play. Try not, but I can't promise it won't because I haven't liked cherry pie my whole life. Would anyone think if I said that that I was somehow weak-minded or an unfair person or do you think I was doing the honorable only right thing to do? Because you know what? Maybe I'm better off down the hall judging the ice cream. I pretty much like all the ice cream. Okay, now this case got nothing to do with lighthearted as pies, cherry, anything like that. This is a serious matter. This is a personal injury lawsuit. But I'm going to be asking some questions because some folks have feelings against personal injury lawsuits. They have a level of distrust, dislike. They think people tend to make things up or exaggerate or they're just bad for America. There are too many of them. Whatever you've had a bad experience, something you believe, something you've read, something you've heard, but you have some feelings against these kind of lawsuits. Now I've done that. I've set it up. I go identify who does. Then I ask would it be fair to say that because of those feelings, they may come into play in spite of your very best effort, kind of like the example I gave if it was a prosecution case. So that you could not assure the court your decision will be based solely on the evidence. Certainly you're not going to put your fingers in yours and ignore the evidence. You're going to take the evidence in. The point is you couldn't assure the court it would be based solely on the evidence in law because it may be the evidence in the law. Plus, your ingrained feelings and beliefs have an unintentional impact. The evidence plus reality. Would that be fair? Can they say, yes, how many of the rest do you feel like that? Do they need a degree? And you go get them, reconfirm it on the record. You've now established cause challenges. And at the end, right before you sit down, I say, now I'm about to sit down. In all likelihood, I'm not going to be able to get back up again. Talk to you. So this is my last chance. So I need to make sure of those of you that told us, and all honesty, you could not assure the court. You could be completely fair and impartial. You'd be as fair and impartial as you could be, but these feelings may come into play. You cannot assure the court that you could base your decision solely on the evidence in law because it may be the evidence in law. Plus, because of that evidence plus reality. And you've got feelings that you ever write to and you don't have to surrender them because you came here just because you got a summons. Your duty was to show up and tell the truth in each of you have. And I thank you very much for being so open and honest. You have done respect to this process. But I want to ask you before I sit down because I won't get to talk to you. Of any one of you that I just read off that list, any one of you say, you know, I was confused. I didn't understand when I told you that I could not assure the court that my decisionary base solely on the evidence cause it may be the evidence plus. I didn't want to change their answer because I want to be able to follow up if you do. Okay, good. I see no hands. Was anybody confused that I just read off on that list when you gave your answers? Okay, good. I see no hands raised. And so I want to say to each of you, this is a process of mutual respect. You have shown great respect for this institution by being so open to it, not resisting it, not pulling teeth, just telling it like it is. And I thank you. We all thank you. But I said mutual respect. And what I mean by mutual respect is here's how we show you respect in return. No one is going to try to twist your arm or make you change your answer. Okay, is everybody all right with that? Okay. Then can I sit down now since I'm not going to get to talk again in rest assured that each of you that said that that was your final answer. And if asked your answer will still be, I can assure the court that my decision will be solely on the evidence. Do my best. I can assure you cause those feelings have a right to it may be the evidence plus. And that's my truth. And I sit down now rest assured that's your final answer. Thank you. Now you see the power of that little revelation that most trials really aren't about a bunch of disputes. A fact, it's about disputes over what's the right conclusion from the facts most of which are agreed to. And when you understand that and you teach the jury that and the judge that the likelihood of you getting a true level playing field goes way up, which means as we all know your chances of getting a just and full result go way up. So thank you. And I look forward to talking to you next time. And I wanted to just point out in addition to these audio podcasts during COVID, I started something that I call at home, but not alone brush strokes because I wasn't able to get to studio and make the recordings. And I do one to three page usually a page and a half memos on things just like this. And since COVID started and I started doing them, I've got like 44 of them out there. And I'm going to keep doing them probably till I'm too old to talk. So if you're interested in them and want them, all you got to do is send me an email and we'll add you to my list. So just send me an email at K Mithnik M IT and I K the letter K M IT and I K at for the people dot com that's F O R the people dot com. And please just for the sake of convenience include my assistant Mary Arnold and all you do is M Arnold at for the people dot com that we'll go directly to her. She will add you at no charge to my list serve and she will send you all of the previous 40 plus to catch you up. And then from that point forward, you'll get all of the new ones. I look forward to talking to you next time. [Music]