What Are Facts, Anyway?
We say that trial is a vehicle for discovery of the truth. Legal issues are left, in almost every jurisdiction, for a judge to decide; juries decide facts. But just what are facts? The answer is by no means simple.
Quentin Skinner, a Cambridge historian, should be must reading for all trial lawyers. His two volume work, The Fountations of Modern Political Thought (1978) is scholarship at its best. But his three volume Visions of Politics is of potential great use to trial lawyers.
Chapter One of the first volume is entitled, "The practice of history and the cult of the fact." What's this? How can we make a cult of brute facts? Aren't beliefs the stuff of which cults are made? Isn't there a species of intellectual history that draws a comfortable distinction between facts and values?
Skinner reminds us again that there is no such facile distinction. Every look backward, whether it be to recreate why, let's say, Charles I's head was detached from his torso in 1649, or, more prosaically, why a client's car collided with the car of another resulting in the death of her children, results in recreation of the past. Every recreation requires interpretive commitments which, left unexplored, yield a past distorted rather than understood.
This chapter is a reprint of a 1997 essay in which Skinner took on Sir Geoffrey Elton's stark vision of the historian's craft. The debate between the two men sounded much like the challenge of a law professor trying to infuse in students a passion for the law of evidence. The past is inaccessible to use; we can approach in only through the use of interpretive tools designed to yield the most reliable vision possible. But are these tools we hold at arm's length, or does the lens also change the viewer?
Elton counseled method over all: What was studied matter less than the manner of studying. Historians are apprentices learning a craft. Whether they make tables or door stops matters but little. Craft is all.
But as Skinner notes this conclusion is deeply ironic. A critical engagement with the past might yield us better able to call for reform in our own world by freeing us from preconception. Yet a scholar trapped within the confines of his method eschews such a vocation. Education, Elton, is forced to conclude, is a lievlihood perhaps beset by folly.
Of what significance is this to trial lawyers? We, too, are apprentices in a craft designed to teach us to recreate the past. But we do so not in a detached sense of withdrawal from the present. Rather, the present's imperatives press down upon us. The luberty of ther client seated to our right, her future, and the future of her family, depends on our craftsmanship.
I am persuaded that there are no such thing as great cases. But there are great lawyers. Study the trials of Clarence Darrow, or the work of Gerry Spence. In each case, these geniuses used their craft to recreate the past in such a way that jurors were empowered to speak not simply of what has taken place, but of what should come. Their are no brute facts. But there are stories than be told with better and more fluid terms. Great lawyers transform ordinary trials into great stories.
Skinner's essay is must reading for a trial lawyer. There is perhaps no method by which genius can be taught. As Goethe once observed, "talent does what it can; genius does what it must." Yet Skinner informs and reminds that every look back is a present act fraught with consequences for the future. After reading his essay of the cult of facts, I am looking once again at the evidence I have assembled for a trial to come next month. What seeds have I overlooked? What commitments have I made without being aware? Where am I invited to paint on the present's blank canvas in colors my adversary may not even see?