Dear Nick and Nora,
Recently, I’ve had long conversations with both of you. The lawyers have continued, or postponed, your hearing once again, which gives me a chance to explain why you are both going to lose in court.
Nick, you have a bad attitude toward the judicial process, and Nora, yours isn’t any better.
Your attitudes are so bad that you’ll both be disappointed by your court experience no matter what the ruling happens to be. If cost is considered, it is already impossible for either of you to get anything worth what you’re paying for.
You have both spoken to me of your faith in the court process: that it will be “fair,” that it will find or expose the “truth,” and that the combination of “truth” to “fairness” will result in “justice.” The best adjectives I can think of to describe this kind of thinking are childish and naive.
What I’m about to tell you is neither skeptical nor cynical. It is an accurate description of how it is supposed to work. Today I’ll deal with the idea of “truth.” I’ll save “fairness” and “justice” for the next letter. I know I’ll feel a need to write a footnote or two so, to keep this letter short, you can access the notes at burkefamilylaw.com.
. . .
You both seem to believe there is some kind of objective reality or truth. While the notion of objective reality is “contested,” we can assume there is such a thing, but it is not what the judicial system attempts to determine. Instead, the judicial system creates an approximate and artificial reality using information brought to court that is “admissible” under the rules of evidence discussed in the last letter.
The basic principle of the law of evidence is that all relevant information can be considered unless it is excluded by law. Over a period of centuries, some forms of evidence have proved to be generally unreliable, so they are excluded. Evidence is also excluded because of policy decisions made by the court or legislature.
In cases like yours, the judge considers the admissible evidence presented and constructs an approximate artificial reality that is good enough to decide the case. How good is good enough? For you (and for all civil cases) it is “more likely than not,” or “51 percent to 49 percent,” or “the tilt of the scale of justice, however slight, in the direction of the court’s determination” that determines good enough.
Here are examples of how it works:
» 1. The legislature has decided mediation works better if the parties know what they say during a session can never become testimony before a judge. In one session, Husband threatens to drive the family company into the ground. At separation the company was healthy, and at trial it is nearly defunct. Husband blames the economy; Wife blames Husband. The evidence assembled by each side has approximately equal weight. Wife would like the judge to know about the statement in mediation.
The version of reality created by the judge would be more accurate if the evidence considered included Husband’s statement, but it can’t be considered because of a public policy (that, ultimately, was no use to these litigants).
» 2. In the same case, Husband’s chief financial officer has written Wife a letter saying that after she and Husband separated, Husband let the business run itself into the ground, which is why the chief financial officer quit and now lives in Europe.
Of course, a judge’s construction of reality would be improved if this information were available. However, the letter to Wife is mere hearsay and cannot be received as evidence unless the CFO is present in court — and he’s staying in Europe.
» 3. If the CFO were to appear at the trial as Wife’s witness, he would not be allowed to say, “Husband let the business run itself into the ground.” Instead he would have to testify to “facts” of which he had firsthand knowledge. “Husband ran the business into the ground” is an opinion. Witnesses cannot give opinions unless they qualify as an expert.
» 4. The CFO might testify, “During the year after separation our revenue went down by 75 percent.” Why? “Because we were getting very little new business.” Why was that? “Husband wasn’t getting new contracts.” Do you know why? “Yes.” Why? “He wasn’t schmoozing with the people you need to schmooze with to get this kind of work.”
Does the CFO have personal knowledge of the inadequacy of Husband’s schmoozing? If not, it becomes mere opinion and therefore not admissible evidence. The most dramatic examples of how the rules of evidence determine what can be considered in the creation of the court’s artificial reality are found in criminal law. Imagine a situation where a defendant is stopped by police while driving his car for no reason other than to hassle him. Also, for no reason except to hassle, the trunk of his car is opened and a corpse is revealed. With the discovery of the dead body, other evidence ties the defendant to a murder. On these facts alone, the dead body, or observations of the dead body, would not be admissible as evidence because of the strong policy against arbitrary searches by the police. This policy leaves the court’s constructed reality missing its most important feature.
A judge’s job is to create a “good enough” artificial reality from the available admissible evidence, decide the issues on the basis of that reality and move on to the next case. That’s all you can expect and the best you will get.