Thanks to F. Lee Bailey…

Years ago, I heard a presentation by F. Lee Bailey.  His audience was other lawyers.  His topic was impeaching adverse witnesses – that is, convincing a judge or jury not to believe them.  His premise was that people – including judges and jurors – don’t want to think other people are lying, if they can help it.  Bailey’s advice, therefore, was to avoid the beginner’s mistake of trying to convince a jury that an adverse witness is a liar, except as an absolute last resort.  Instead, he recommended, give the jury, if at all possible,  other reasons for not believing the opposing witness.  He spent the rest of his talk giving examples of different ways witnesses can be giving false testimony, other than lying.

Looking back on it, it was a surprising presentation from the man who, some years later, convinced the O.J. Simpson jury that detective Mark Furman was a bold-faced liar.  But when I heard Bailey’s presentation, O.J. Simpson was still doing Hertz commercials.  Bailey himself was already famous for representing Sam Sheppard, Ernest Medina, Patty Hearst and others.  His talk made a big impression on me because, in it, he offered a list of ten ways to discredit a witness, other than by arguing that the witness was lying.  I can’t say it improved my legal prowess, but it did get me thinking about all the ways people simply make mistakes.

I lost the notes I took.  Unable to find Bailey’s list on-line, I attempted to reconstruct it myself, in order to do a Bailey-esque “top ten” list of my own in this forum.  But I’ve finally abandoned that effort, for reasons I suspect will become apparent.  Still, I’m interested in the variety of reasons for error, and propose to share some of my thoughts on that subject.

One obvious reason for error is simple unawareness.  An example comes quickly to mind: my lack of awareness of my oldest brother’s existence.  He was born with Down Syndrome, and before I was ever born, our parents had been convinced to send him away, to start a “normal” family as soon as possible, and to forget (if they could) that their first son existed at all.   Three children later, they found themselves unable to do so, and belatedly accepted their first son into the family.  I’ll bypass here the obvious question of whether they were wrong to accept the advice in the first place.  My example has to do with my own error in believing that I was the second child, born with only one other sibling.   My wrongness was simply that I didn’t know, as I’d never been told.  I didn’t know about our oldest sibling until I was five years old, when he first came home.  Until then, every detail of my life had suggested I had only one older brother.  Being wrong about that was simply a matter of not knowing.  As my other older brother recently pointed out, the one thing we cannot know is what we don’t know.

If simply not knowing (i.e., not having information) is one reason we can be wrong, misinterpreting information seems to be another.  Years ago, I’d just sat down after getting home late from work one evening when my dear wife Karen sat down beside me and, looking at my forehead, furrowed her brow in an expression of clear concern about whatever she saw.  Hearing her say, “Hit yourself over your right eye,” I imagined a fly or mosquito about to bite me. To kill the insect I’d have to be fast, so instantly I swung my hand to my forehead, forgetting I was wearing glasses.  (We can count forgetfulness as another way of being wrong).  When the open palm of my right hand smacked my forehead over my right eye, it crushed the glasses and sent them flying across the room, but not before they made a very painful impression on my eyebrow.  But the most surprising result of my obedience was Karen’s uncontrolled laughter.

Now, I thought it cruel for her to laugh when I was in pain, but when a person you love is right in front of you, laughing uncontrollably, sometimes, you can’t help yourself, and you simply start laughing yourself (which is what I did, without quite knowing why).  My laughter just added fuel to Karen’s.  (I suppose she thought it funny  that I’d be laughing, considering the circumstances.)  Then I began to laugh all the more myself, as I realized she was right, that I had no reason to be laughing; the fact that I was laughing struck me as laughable.)  Neither of us could stop for what seemed like forever.

Karen, bless her heart,tried several times to explain why she’d started laughing – but each time she tried, the effort set her off again.  And when her laughing started up again, so did mine.  The encores repeated themselves several times before she was finally able to explain that when I’d sat down, she’d noticed a bit of redness above my right eye.  (Perhaps I’d been rubbing it during my drive home?)  She had simply asked, “Did you hit yourself over your right eye?”  Not hearing the first two words, I’d mistaken the question for a command.  Dutifully, and quickly, I had obeyed.

So far, I’ve mentioned simple ignorance, forgetfulness, and misinterpretation.  I might add my mistake in simply assuming the presence of an insect, or my negligence in failing to ask Karen to explain her odd command.  Actually, we begin to see here the difficulty of distinguishing among causes of error, or among ways it is committed.  Was it really that I had misinterpreted Karen’s question?  Or was it, rather, a failure of sense perception, my failure to hear her first two words?  Or was it her failure to sufficiently enunciate them?  Such questions suggest the difficulty of classifying reasons for error.  When it comes to assigning blame, people like F. Lee Bailey and me made our livings out of arguing about such things.

But I do have an example of a different sort to share.  This one also dates from the 1980’s.  It represents the sort of error we commit when we have all the necessary information, when we make no mistakes of hearing or interpretation, but we – well – let me first share the story.

One of my cases was set to be heard by the United States Supreme Court.  Now, I’m infamous for my lack of concern about stylish dress, and at that point, I’d been wearing the same pair of shoes daily for at least five years – without ever polishing them.  (Go ahead, call me “slob” if you like; you won’t be the first.)  The traditions of appropriate attire when appearing before the United States Supreme Court had been impressed upon me, to the point I’d conceded I really ought to go buy a new pair of shoes for the occasion.  So the night before my departure for Washington, I drove myself to the mall.  Vaguely recalling that there was  a Florsheim shoe store at one end – which, if memory served, carried a nice selection of men’s shoes – I parked, found the store, and began my search, surveying both the display tables in the center of the store and the tiers of shoes displayed around the perimeter.   My plan was first to get a general sense of the options available, and then to narrow the choices.  As I walked from one table to the next, a salesman asked if he could help.

I replied with my usual “No, thanks, just looking.”  As I made my way around the store, the salesman returned, with the same result, and then a third time.  (My war with over-helpful sales clerks is a story for another day.)  Finally, with no help from the salesman, I found a table with a display of shoes that seemed to suit my tastes.  I picked up several pairs, feeling the leather, inspecting the soles, getting a closer look.  The salesman was standing close by now (as if his life depended on it, in fact) and one final time, he asked if he could help.  I really didn’t want to be rushed into conversation with him.  But I took one final look around that particular display, comparing the alternatives to the pair I was holding in my hand, and finally said to the salesman, “I think I like the looks of these.  Are they comfortable?”

“You ought to know,” came the salesman’s reply.  “They’re the same shoes you’re wearing.”

Looking down at my feet, of course, I realized why I’d remembered that store from five years earlier.  At least I’d been consistent.  But when you don’t much care about the clothes you wear, you just don’t think about such information as the location of a shoe store: it’s just not important.

So one issue raised by the example is focus.  Never focus on your shoes and you’re likely to look stupid for not knowing what you’re wearing.  But right behind focus, I think, the example raises the matter of consistency.  Darn right I’d been consistent!  Because of not paying attention, I’d gone to the same mall, to the same store, to the same case, and to the same pair of shoes, exactly as I had five years earlier.  I’ll generalize this into an opinion about human nature: when not consciously focused, unconscious force of habit takes over.

Lack of conscious focus and unconscious force of habit can certainly lead to error.  But being unmindful of something is a matter of prioritizing among competing interests.  With billions of pieces of data showering us from all corners of our experience every day, we have to limit what we focus on.    In my case, it’s often clothing that gets ignored, and instead, ever since hearing F. Lee Bailey’s talk thirty-some years ago, I’ve been thinking about the reasons people can be mistaken.  Everybody has things they tend to pay attention to, other things they tend to ignore.  But among the reasons we err, I think, is the tendency to proceed, unconsciously, through the world we’re not focused on, as if we’re on auto-pilot.  Who hasn’t had the experience of driving a car, realizing you’ve reached your destination while lost in thought, having paid no conscious attention to getting there? How much of our lives do we conduct this way – and how often does it mean we might ask a question just as stupid as “I think I like the looks of these; are they comfortable?”

In my next post, I plan to explore some further types of error.  In the meantime, I’ll close here by pointing out that if you believe what you read on the internet, F. Lee Bailey ended up getting disbarred.   And unless I’m badly mistaken,  he did make Mark Furman out to be a liar.  But while I can admit to recalling two or three times in my life when I told bold-faced lies,  I have no problem admitting I’ve been wrong a lot more often than that.

So for now, I’ll simply thank F. Lee Bailey for helping me understand that lying is just the tip of the iceberg; and that trying to figure out how much lies beneath the surface is  a deep, deep subject – and a problematic one, to say the least.

To be continued.

– Joe

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