One of the more surprising truths concerning the trial of a lawsuit is about eyewitness testimony. It is often one of the most unreliable forms of evidence there is.
But how can a witness who is there to see the event in question be unreliable?
Most of us who watch the movie channels know about the eyewitnesses defense attorney Joe Pesci so artfully discredits in ”My Cousin Vinny”. Does it really happen that way?
Not quite that convincingly most of the time, but it really does happen.
I remember well a case I had years ago when I tried a lot of cases. The other side said it had an eyewitness that contradicted my client’s testimony about an accident.
As it turned out, the eyewitness, as any lawyer could have shown, was some distance from the late night accident, there were no streetlights at the scene, and there were other obstructions in the line of sight of the witness. But more than all of that, the witness had a very personal bias that became apparent after just a few questions. He had a bone to pick, and it was evident.
The case, which had merited no offers of settlement before the deposition, was settled shortly after the now discredited eyewitness was shown to be not much of a witness after all.
And the eyewitness? The weaknesses exposed in his opinion had no impact on him. He continued to fail to see what he had originally failed to see: he was just not in a position to see things clearly, internally or externally.
In this instance, as in so many, many others, circumstances are not as clear as they may seem, it seems.
What makes eyewitness testimony so dangerous is the witness, mistaken or not, believes what they say. Their otherwise credible persona carries the weight of their opinion well past the facts. Unless you can show they did not see things as clearly as they think (generally, a hard thing to do), their honest opinion, despite being wrong, can lead to a poor result.
Do we have opinions, sincerely believed, which suffer from real obstructions to our internal and external line of vision of an issue?
Do we hold any doubt that we may not be right on an issue? Apparently not so much anymore.
Like the eyewitness in my case, our mind’s eye takes a snapshot of something, and our position is set. We have, generally quite earnestly, what we believe to be clarity. All doubts, obstructions, and biases, are cropped out of the picture.
In my experience, however, in sixty-two years of living and thirty-seven years of practicing law, few things have such clarity.
We live in a country which is increasingly and stridently divided on so many issues: politics, faith, sports, values, education, ecology, legal rights, healthcare, and government, among many others.
Gone are the days of engaged but polite disagreement. And we no longer have just opinions. Everything is now a high principle, and when you elevate opinions to principles, you elevate the heat around the discussion of those issues considerably.
We should all hold tightly and firmly to true principles that guide our professions, our faiths, and our basic morality. But most of our opinions, though firmly held, do not rise to that level, do they?
After you rule out the truly fringe thinkers, aren’t most people pretty decent? After all, they grew up on the street around the corner, they attend neighborhood bodies of faith, they want a family to love and to love them, and they want a better life and a better community.
Sounds like you and me, don’t you think?
One of the South’s greatest sages, Billy Packer, celebrated Wake Forest national basketball analyst, used to say he was “often wrong but never in doubt”.
Strong opinions may be good entertainment for March Madness, but they do not translate as well to everyday life.
Like you, I have opinions, and lots of them. And I am pretty confident I am right most of the time, thank you very much. But on my good days, I have come to understand there is always another side to an issue. And I would be wise to try to see it.
As my wise father said: we start getting smart when we realize how little we really know.
Since we are all eyewitnesses to our own strongly held opinions, it might be a good idea to recognize we may not have as clear a line of sight on issues as we think. And a person who has a different view may not really be the Boogie Man.
What I’ve learned about life on the way to the courthouse is this: some doubt about our own eyewitness opinions is a good thing. A little gentle cross examination of our heartfelt opinions may take the edge off of them and reveal an obstruction in our line of vision. And if you lower the intensity level of your opinion, you just might grow a friendship with someone of a different opinion that will be a blessing to you.
And you never know: you just might learn something.
Of course, I could be wrong.