By Dr. Ken Broda Bahm:
Congress and the American public have been gripped by some unknowns recently. A whistleblower in the intelligence community made a claim that the Inspector General considered both credible and urgent. But, initially at least, that’s about all we knew because the whistleblower’s complaint was not provided, as the law requires, to Congress. So there’s a big unknown: What exactly is the nature of the complaint? That gap mirrors the gap that can sometimes be a part of more conventional cases in litigation: a fact that cannot be fully answered by the available evidence. In the whistleblower situation, many details emerged fairly quickly to fill out the background: It involved Ukraine, it centered on Trump’s call for that country to investigate his political opponents, and it followed his personal move to freeze roughly $400 million in military aid to Ukraine. And then, just before press time for this post, we of course had the full fireworks of the notes on the call and the whistleblower’s complaint. The known facts at this stage have done much to complete the picture on the remaining unknowns. But still, there might be a core fact that is out of reach. For example, as of this post’s publication date, the public still does not know the whistleblower’s identity, or specifically how that person knows what she or he claims to know.
Now, it seems likely, especially with impeachment creeping onto the table, that we’ll learn more about that in the coming hours, days and weeks. But in your more typical case in civil litigation, there are likely to be some unknowns that just won’t be revealed by the facts. Or there might be some known facts that will simply be inadmissible, and that creates a practical challenge for litigants. Jurors are inquisitive and they want to know the complete picture. Knowing all the facts is what gives them comfort in making a tough decision. So what can a trial lawyer do when the view they’re given has that one dark spot that we just cannot see into? In this post, I will share a few thoughts on ways litigants can address that central unknown.
1. Connect the Dots
If the known evidence fits a pattern, then that helps to inform reasonable judgments about what the unknown facts might be. That seems to be the quickly-evolving pattern on the Trump-Ukraine issue. The more we know about the surrounding evidence, the more we understand the likely basis for the complaint. In a civil employment case, for example, we were not in the boardroom and may not know the true reason for a termination, but we can assemble all the other evidence and look at the pattern.
2. Invite the Inference
When you have a jury, you may need to be explicit about what they can infer from the gap. Some states, like New York, have an adverse inference instruction regarding a missing witness. The jury is told that they may, but are not required to, “draw the strongest inference against” the party that failed to produce a given witness. In most jurisdiction, proven spoliation will also yield a similar instruction. Even without such an instruction, counsel can often in closing offer argument that suggests what that inference ought to be.
3. Eliminate the Alternatives
Another way to handle a gap is to offer arguments that eliminate some of the alternatives on what could fit in that gap. In the case of the whistleblower memorandum, for example, administration critics can argue that if the basis for the whistleblower memo was innocuous, why the effort hide it? When there’s a missing piece in the puzzle of your trial message, you can often use testimony or closing argument to work through the various counterfactual possibilities and eliminate them one by one.
4. Reframe It Around the Known
The final possibility for dealing with a central unknown is to de-emphasize that facet while playing up the features that are known. For example, administration critics or supporters could say, no matter what the basis for the whistleblower’s complaint is, the call transcript speaks for itself. When one question cannot be answered, then the practical thing to do in litigation is to frame the case so that question is not critical. For example, “We may never know why he took that action, but the law doesn’t require us to know.”
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Other Posts on Comprehension:
- Shine a Light on Black Box Evidence
- Know Your Trial Message
- Don’t Fret, Your Jury Can Handle Some Complexity