November 7, 2016

Shine a Light on Black Box Evidence

By Dr. Ken Broda-Bahm: 

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We have finally, some would say ‘mercifully,’ arrived at the end of the 2016 presidential campaign. But not before one last surprise: Just eleven days before election day, and as millions of Americans were already voting early, FBI Director James Comey notified Congress of the discovery of additional emails that “appear to be pertinent” to the agency’s earlier investigation of Hillary Clinton’s personal server and private email use while Secretary of State. Overnight, what had been a relatively comfortable Clinton lead turned into a tighter race. The main reason for the polling shift, and the key ingredient in Comey’s notice comes down to one word: uncertainty. At the time he wrote the letter, the FBI did not yet have a warrant to actually review the emails, and it was unknown if these emails were new or if they had been already considered in the prior investigation. The uncertainty stretched out for nine days before Director Comey basically said, “never mind” to Congress. But for the Clinton campaign, the resurrection of the issue and the way it was raised created questions and speculation during that nine-day span that could not be easily answered. 

Of course, one problem with all of this is the appearance of a politicized FBI during the closing days of an election. But the other problem is one that might be more familiar to civil litigators: the problem of dealing with appeals that are based on what we don’t know rather than on what we do know. When evidence is, in effect, locked in a black box, the fact finders are left to speculate on what that evidence might show if they were able to see it. The rules of evidence strongly weigh in on the side that an absence of evidence is not evidence. But with juries and judges being human, speculation on what is in the box can still be influential, and attorneys can and often do try to benefit from that speculation. When an attorney makes a valient effort to admit a document while knowing that the judge is almost certainly going to keep it out, it is at least partly to plant a seed in the jury box to get them thinking, “I don’t know what that says…but I’ll bet its bad for the other side.” In this post, I will consider some ways to address that speculation when it works against you, and offer some advice on what to do when you’re in Clinton’s shoes and the problem is absent evidence rather than present evidence. 

The Problem: The Fallacy of ‘Appeal to Ignorance’ 

The fallacy, ad ignorantium in Latin, is the mental mistake that occurs in resting one’s argument on the absence rather than the presence of evidence. For example, the claim “Scientists have never disproven that aliens helped build the pyramids,” doesn’t mean the extraterrestrial claim is true. In the case of Comey’s new emails, the “We don’t know what’s in them,” is the main reason that the Clinton campaign was powerless to address them. Similar appeals to ignorance can also tie the hands of litigators. When the other side seems to invite the adverse inference from unknown or missing information, what do you do? You can’t just call it out as an “appeal to ignorance” since few understand the concept, and to the rest it sounds like you’re calling your adversary or your audience “ignorant.” I believe, though, that there are a few more ways to shine a light on the strategy. 

How it Applies in Litigation

I think there are at least a couple of common ways the litigation message can warp into an appeal to ignorance. 

Speculation Over the Witness You Didn’t See

Jurors sometimes hear about people that they don’t hear from. In front of some judges, a party can even say, “Why didn’t we hear from them?” and invite jurors to speculate about what those people would have said if they were witnesses. The other side, of course, can’t tell the jury what they would have said, but the main tools in dealing with it are to reinforce the scarcity of time (“We want to make our case briefly in order to respect your time”), the need to be selective (“We want to get to the heart of the controversy and not get mired in details”), and the potential redundancy of the testimony (“We have heard from numerous people within the organization, one more would not have added new information”).   

Suspicion Over the Empty Chair

Pointing to a party who is not represented in trial is a common strategy, and one that I’ve in a past post called ‘Eastwooding’ based on actor Clint Eastwood’s dramatic attack on an empty chair at the 2012 Republican National Convention. Blaming the absent individual or organization is a kind of appeal to ignorance because it invites fact finders to believe that, because they’ve heard no defense, then these actors have no defense. Assuming this assumption cuts against you in trial, what’s the best response? When you can, it is probably to take it head on and reframe the case: 

You may have noticed that the other side is talking alot about SmithCo, but no one from SmithCo is here to defend themselves. It is only natural for you to wonder why not, and the only thing we can tell you is that this trial is only focused on the parties that are represented and standing before you. The legal question to be resolved in this courtroom is just the legal question that separates our two sides — not other questions that might bear on other people.  

When it is allowed, that message can encourage jurors to believe that the other actor may have already been dealt with in some way. When the law allows that empty chair to be a nonparty at fault and end up on the verdict form, of course you cannot do that. But you can still control jurors’ attention to at least some extent by controlling the spotlight in order to present jurors with a bounded question of who is more credible: you or the other side. Make sure the central characters and change agents in your narratives don’t include your empty chairs, and focus your “if only” statements on just the other side as well.   

These aren’t perfect solutions, of course. Jurors have a natural need to create a complete story in their own heads, and that is sometimes going to require filling in some gaps. A good litigator pays attention to the whole story, including the gaps. 

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Other Posts on Logical Fallacies: 

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Image credit: 123rf.com, used under license

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