Legal-Ease: Facts, alternative facts and optical illusions

Our national political arena is full of arguments concerning “the facts.” Particularly in our part of the country, we are raised to believe that facts are indisputable and objective. Many times, people will ask for “just the facts; no emotion.”

In the legal world, facts are often disputed. I am in no way agreeing or disagreeing with various media and political operatives’ interpretation and arguments about facts and alternative facts. Nonetheless, facts are not always as objective as they can appear to be.

In America, judges decide the law, which is subject to interpretation. In most lawsuits, including criminal cases, the facts are decided by juries. If a lawsuit is not settled before trial, the facts are essentially all that is at issue in the trial. And, when the facts matter, facts will be disputed.

It is not uncommon in legal trials for two witnesses to disagree about basic facts in a dispute. As a result, in hearings and trials in court, different witnesses can swear an oath to tell the truth and end up reciting completely different facts. The inconsistency can even occur among dozens of people who were all in the same situation at the same time, with each other. When different witnesses state the facts completely different from each other, must at least one of them be lying? Not necessarily.

First, despite the confidence we each have in what we “saw,” perceptions and memories are incredibly unreliable. A person need not be battling Alzheimer’s or sleep deprivation to misremember something. The labyrinth of neurons in our brains coupled with our God-given ability to reason sometimes results in the mental equivalent of a short-circuit.

Second, people sometimes see the very same objects and situations in completely different ways. For example, two years ago, social media went crazy trying to decide the color of a dress that was depicted in a photograph. Everyone saw the same photograph, but various people saw the dress as different colors, even under the same light.

Similarly, Facebook is currently full of black and white drawings that can appear to be images of two or more different objects. A drawing of a tree might also be the drawing of five monkeys. My favorite such image is a three-dimensional frame of a statue that looks like a deer from the front and an elephant when viewed from the side.

Nevertheless, people are usually quite defensive about the accuracy of their memories. In many legal disputes, clients can be quite insistent that their attorneys believe the facts presented by the client.

Ultimately, it makes no difference whether an attorney does or does not believe the facts presented by that attorney’s client. Attorneys are ethically required to represent every client with the same amount of professional advocacy whether that client is “believed” or not.

In fact, attorneys are sometimes better advocates for their clients when the attorneys are suspicious of their clients’ representations of facts because the attorney can better address weaknesses or arguments from opposing parties.

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Lee R. Schroeder R. Schroeder

By Lee R. Schroeder

Guest Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.