August 28, 2019 Feature

Using Critical Thinking to Analyze Facts

Law schools do a good job of teaching law, but who teaches us how to learn, organize, and analyze facts in litigation?

Charles J. Faruki

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Do you want to know a secret? Although in our profession, and on these pages, we regularly examine nearly every aspect of litigation practice, a topic we never really discuss is how trial lawyers best analyze the facts of a case.

In complicated cases, there are many details that get referred to as “the facts.” There are documented facts, testimonial facts, and corroborated facts; assumed facts, supposed facts, apparent facts, and others. Yet, none of those “facts” automatically becomes part of the facts that will be before the court. There are no “trial facts” until the lawyers first determine what record they can make and then which facts they wish to present. The lawyers thus bring their interpretive skills to each case, to sort out and identify the core realities of the dispute and the specific factual underpinnings of whatever story they strategically decide to tell.

Until then, each trial lawyer confronts a factual morass, especially at the start. The information is unstructured. It lacks order. It is rife with gaps, bedeviled by mistaken recollections and lost memories. Often it is internally inconsistent. Typically, it is confusing.

Those problems combine with others. Witnesses offer self-justifying statements. They avoid accepting blame and responsibility and instead try to cast them on others. They rationalize. Some lie. Their presentations are further clouded by fear, uncertainty, doubt, mistake, misunderstanding, miscommunication, and miscalculation. They may have acted in the heat of ambition, motivated by greed, under psychological stress, or urged by desire.

Law schools do a good job of teaching law. Some teach more. Yet, who teaches us how to learn, organize, and analyze facts in litigation?

Illustration by Robert Pizzo.

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