Here’s a paper from my law school days. Must have been important as the work was anonymous.
I was Student #73. Seems a little pretentious if you ask me. For the first semester.
Original title: Lawyers “Use” “Facts.” “Facts” “Use” Lawyers.
Law, Language & Ethics. Professor Abramson. October 27, 1975 – JDW
One necessarily approaches this problem with some trepidation – it would be presumptuous to suggest otherwise. Lawyers use facts, facts use lawyers is not unlike a Zen koan. It seems apparent the thought is not as important as the thinking. So…
Most lawyers are no better nor worse than most laymen, in that they seek only the maximization of security for their bodies and their minds. Too often – once would be too often – lawyers are viewed as something greater than the masses, but nothing could be further from the truth. Whatever truth is. If many members of the legal community are in any way extraordinary, this is a result of their ability to refine, i.e., distill, human frailty in themselves, while at the same time they take advantage of it in others. The “lawyers” use of “facts” is perhaps the most obvious manifestation of their weaknesses. A “fact” is really nothing more than a label, a handle on which to clutch and cling, some elusive, illusory perception, or idea, which we could not otherwise communicate. We sacrifice comprehension for utility, accuracy for consistency – indeed – even clarity for ambiguity.
For sanity’s sake, we generally assume that facts do exist, perhaps only as prima facie evidence of “cause and effect,” but nonetheless, given the nature of the human animal, facts are assumed. It would seem that what the facts are is not as important as that they are, or at least that we think them to be. Confusing, it seems, yet I aver that this confusion exists only because facts, by their linguistic definition, are never questioned. We may disagree as to the particular relevance or implication of certain facts, but we do not deny that facts are extant.
It seems doubtless that facts do exist (which might be an example of the point in the preceding paragraph). Perhaps a fact is a “thing” which is, undeniably, or a “raw, brute event,” as was suggested by Professor Cook [I have no idea.- JDW]. But as with everything else, of this we are not even certain. The law has taken this general assumption, that is, that there are facts, and constructed its complete system on what is essentially a fiction. At best, the word “fact” refers to an individual’s perception of, e.g., “the actual thing.” Thus, a “fact” might necessarily have one meaning to one, or some persons, and another meaning to another individual, or another group. The “fact” is not scared, nor iron-clad, nor whatever term one might wish to choose which describes the rather mythical import given the word.
A “fact,” as we normally understand the term, is meant to confer a sense of exactitude – a “fact” is believed to be an explication of a thing, or act, which cannot be denied. An important reason for the attractiveness of a “fact” is that it is s=defined as value-less. A “fact” then is, supposedly, what it is, no more no less. Yet a “fact” is nothing more than human perceptions of what is, not the thing itself.
Aldous Huxley once said, “Facts are ventriloquists’ dummies. Sitting on a wise man’s knee, they may be made to utter words of wisdom; elsewhere, they say nothing, or talk nonsense, or indulge in sheer diabolism.”
From the dummy on the lawyer’s knee, we are more likely to hear facts used as oaths of “truth” to obscure the truth. The importance which the lawyer seems to place upon “facts” is no more than a shield of obfuscation to becloud the issues inherent in a particular set of circumstances. Certainly, this is both too harsh and too generic an assertion, for in numerous instances the attorney wishes nothing more than to eradicate confusion.
However, on those all too frequent occasions when lawyers are not engaged in locating truth, but in obscuring it, “facts” are undeniably utilitarian. Lawyers so occupied do not use facts, they manipulate that evidence which they wish others to believe is most accurate – this is the “use” of “facts.”
The “use” of lawyers by “facts” is implicit in the system which is dependent upon “concrete evidence” to function. Once facts are deigned to be of such supernatural value, it is their existence, in and of itself, which determines what will be the outcome. Having defined certain perceptions as ones which possess virtually irrebuttable validity, these perceptions in turn delineate the parameters of the ensuing inquiry, narrowing it progressively until inquisitin is concluded. Such investigatory procedure seems to be “common-sensical,” if not optimal.
Yet, as demonstrated by scientific proof and legal education, for example, the method becomes not merely a tool or even a systematical aide, but often serves to formulate in a large part the end result itself.
Interlined throughout this brief discussion is an expansion upon “fact skepticism” to a philosophical stratum perhaps best described as “fact cynicism.” Society, and law, is structured as it is solely to facilitate human survival. The nature of man requires this structure in order that he may (normally) maintain his mental and emotional equilibrium.
The beast that is man depends upon his expectations and rationalizations which necessitate some construct, regardless of its content. Consistency becomes the most essential concern of man. Facts become important only because man needs explanations for his observations, and instructions for his future actions. Man could not function, in any real “everyday” sense, if he were not convinced that Y would follow X.
Note that, on those inevitable occasions when the system fails, we attempt to void the exception – if one man remains sane when everyone else loses his mind, we simply redefine “sanity.”
It does not seem, to any great extent, important to examine at this point exactly how lawyers use facts, and how they are in turn themselves “used.” It does seem, however, paramount that we are made aware of just what is taking place, and why. It is unlikely that man, as he is currently structured, can function in any different manner, but surely change will not be occasioned until man becomes cognizant of the rationale which underlies societal systemization.
We must admit: (1) we cannot, and do not, know, for a certainty, what is; (2) we have a very real need to think we know what is; (3) that we can take individual perceptions and generalize as to their meanings; (4) we can use these generalizations to govern ourselves; (5) these generalizations are not inviolable, but merely tools; (6) and that we must then generalize about these generalizations.
Only after man has made these admissions does amelioration become a vital possibility. (The bromide that “anything is possible” would appear, at least superficially, a beginning, though I would contend infinitely more persons say it than believe it.)
Life, as it is most often “lived”, is a game. Law, as it is most often practiced, or enforced, or …, is likewise a game.
My gut reaction to this essay topic is that we should first realize/admit we are involved in a magnificent fiction, before we concern ourselves with examining the peculiar manner in which certain chapters are written.
I got a final grade of weighted 78. So, I can tell people, “I left with passing grades.” Seventy-eight.
The following was scratched in number two pencil across the bottom of the last page.
I often liked the style in which this was written and the clarity of expression at points. I felt this nudged some really important considerations sometimes but didn’t come sufficiently and directly to grips with the question actually asked, so as to be able to deliver a knockout punch.
Like quit law school, leave your wife and run off with a buxom classmate?
A knockout punch like that?
Nudge you, buddy.