A fact is a fact.  It is because if it was anything else, it wouldn’t be a fact.  Pretty basic, right?   This comment at  MoneyLaw got me thinking.  My fifth cup of coffee didn’t hurt, either.  Do law students understand “facts” in the law?

Without any scientific proof, I have always contended that law schools were remiss in their approach to what lawyers do. My students, before taking clinic courses, think that “facts” are something that comes after “statement of.” I do not have any insight into the best methodology, but I do think that we should devote some of our resources as educators of future lawyers to teaching fact development and fact advocacy.

It’s sufficient in the world at large to adopt a belief in a set of facts and stick with it, having no need to search deeper or harder since no one will likely demand that you prove you facts to their satisfaction.  Indeed, there are few professions or occupations where mere belief in facts isn’t good enough.  They can afford to disagree, since no one expects their view of the facts to have any consequence beyond their personal conduct. 

Except in the law, where different sides have different facts relating to the same matter, characterized as allegations because they are in dispute.  One of the fundamental purposes of a legal system is to determine whose facts are facts.  Ultimately, allegations of fact have to be accepted or rejected, so that there emerges a set of facts upon which a decision can be made. 

In law school, students read decision after decision that include a statement of facts.  They become the basis for discussion of legal concepts because the decision says so.  The decisions are selected by professors because they serve as good factual examples to teach legal concepts. 

Lost in the mix, however, is the conundrum of facts, as most normal people conceive of them, and facts are the law finds them.  If a jury finds that the moon is made of green cheese, then that is fact for the purposes of the law.  Students are given the misimpression that facts as recited by an appellate court are what they purport to be, facts.  As if there was a TV show at the end of the trial to provide the “real facts” (one of my favorite phrases) so that the court now knows the facts from the allegations.

An answer to the lawprof commenters question comes readily to my mind.  A jaded lawyer (not that I know any) might suggest to students that courts have a nasty habit of cleaning up the facts for the purposes of applying the law and reaching a decision, when in reality they have no clue what really happened.  There is a large, deep hole into which appellate judges can stick their collective heads in order to arrive at a set of facts that they are willing to adopt and apply. 

Judges have no magic way of knowing the truth.  Watch some of the court TV shows, and see how these actors playing judges jump to grossly unwarranted conclusions of truth and falsity about “testimony” from people about whom they know nothing.  Without a word coming out of a mouth, these judges will assume a party to be lying, and engage them as purveyors of perjury from the start.  It makes for fun TV.  Are they really capable of knowing who is telling the truth and who is lying?

In the real world, most judges and juries do their best to distinguish “truth”, but at best it’s a very risky proposition.  My hypothetical jaded lawyer would challenge law students to find key “facts” and query how anyone could know that for sure.  The “he said, she said” scenario is played out day after day in courtrooms across the nation.  There are a variety of reasons why one person is deemed more credible than another, primarily based on the psychology of credibility, but it has nothing whatsoever to do with who is telling the truth. 

If the witness is a drug dealing, 6 time loser, with the shakes, incapable of looking anyone in the eye and with a poor command of language, always lying?  This is the nightmare witness, because no one is ever going to accept this witnesses testimony when compared with a well-spoken, well-groomed, well-prepared police officer.  But sometimes the mutt is telling the truth and the officer is lying through his teeth. 

Somebody has to make law students aware of this reality.  A healthy skepticism of legal facts is crucial to their developing understanding of the law, and their personal development into lawyers.  I suspect that most lawprofs will not be sufficiently skeptical, or cynical as my hypothetical jaded lawyer might be called, to skewer appellate court statements of fact with the harsh examples of an unjust system that pats itself on the back for resolving fact disputes by tying everything up with a tidy bow.

In the trenches, we get smacked in the face with “facts” regularly.  We see big lies and small lies.  We see tiny but critical gaps cleaned up by tailored testimony from professional witnesses.  We see witnesses who will never be viewed as worthy of belief, even though they alone speak the truth.  And we see judges finding the high percentage facts, knowing full well that they have no real basis to distinguish the truthfulness of one side from the other.  But facts must be found, and so the law does its job.