Vail Daily column: The shifting sands of truth
June 22, 2014
Often my job entails duties more akin to those of a social worker or psychologist than an attorney. A comfortable confidant, clients find that I may be the only person willing to listen to their troubles, whether or not they have a significant other or family. As I hear the stories and laments pour forth, I evaluate the internal consistency of the tales, the body language of the speaker and the way that the stated facts fit into potential legal claims and defenses. These are emotional moments for the client, with distress readily apparent in their voices and countenances.
As such, I also try to empathize with them, to see the world through their eyes so that I may brainstorm ways to obtain satisfactory relief, whether through litigation, mediation or by letting it go. What I never do is believe the story. Not fully or even close thereto. In as compassionate a manner as possible, I poke holes in the narrative, ask pointed questions, and try to determine which facts have been omitted so that I can ascertain the relative strength of the potential case.
Not All Black and White
This process can create friction with clients, who assume that I must believe wholly in the truth of their cause in order to be most effective as their lawyer. I work quickly to disabuse them of that notion. As an advocate, the worst thing that I can do is assume the veracity of my clients’ perspective. Doing so closes the mind to understanding the other side, how they may parry and riposte.
If I choose to believe the entirety of my client’s anecdotes, then I may be dissuaded from conducting a full investigation of all discoverable facts. Swallowing a client’s story whole also ignores a fundamental principle: Each dispute is neither black nor white but gray. In trying to vindicate their position, people either purposefully or inadvertently gloss over certain details or embellish others. They myopically concentrate only on the facts that support their cause and, when faced with contradictory information, try to explain it away with limited success. When you mesh each side’s story and see where the conflict points line up, then you begin to see glimmers of what can be construed as truth.
Concept of Absolute Truth
The truth is (pardon the idiom), that I do not believe in the concept of absolute truth. My experience has shown that truth is temporally and situationally relative. Scientific history is a bastion of truths once unquestioned and now discarded. The Ptolemaic conception of an Earth-centric universe is one such example. In the legal world, a judge’s ruling may be held up as truth, but that is only one zero-sum interpretation of a nuanced series of events. Of course, it is a version of truth that holds a lot of power. To avoid having this notion of truth imposed and the consequences that come therewith, one can seek a mediated or negotiated resolution and control one’s own destiny.
Beside the Point
In the end, in my business of litigation, truth is essentially beside the point. If you measure success by wins and losses (which I try hard to avoid), then what is right or wrong gives deference to what you can convince the judge or jury is right or wrong. This is perhaps a cynical view, but one with a great deal of empirical support. Just as clients want me to believe them and thereby validate their experiences, they also want the court to tell them that they are right, that what they have said is the truth.
It can be rather foolish to expend so many resources chasing such outside approval. However, there are certain situations, many of them business-related, where simple self-belief will not suffice. When a former employee pilfers proprietary information and uses it to compete against your company, the resulting reduction of your profits will likely force you to go to court and try and obtain an injunction and/or damages.
The same holds true for the defendant in a lawsuit, who did not initiate the formal quarrel and who commensurately has no choice but to expound the right of their position and hope to convince either the other side or the court that they speak the truth.
Realizing that the search for truth is a quixotic quest is a transformative experience. In lieu of trying to hold the mercury of truth in your hands, you can let it slither away and focus on endeavoring to secure an outcome that makes emotional, psychological, physical, reputational, and/or financial sense.
T.J. Voboril is a partner at Reynolds, Kalamaya & Voboril LLC a local law firm, and the owner/mediator at Voice Of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, firstname.lastname@example.org or visit http://www.rkvlaw.com.