Thanks to F. Lee Bailey – Part Two

Last time out, I was discussing F. Lee Bailey’s effort to identify various reasons a witness can be mistaken.  Bailey’s thesis was that juries don’t want to believe that witnesses lie, so the wisest and most effective way for a lawyer to discredit a witness is to point out for the jury other reasons – other than bold-faced lies – that a witness might not be telling the truth.  Attempting to come up with my own list, I offered examples that involved lack of information, interpretation of information, forgetfulness, the making of assumptions, the lack of focus, and unconscious force of habit.  Today, I continue that survey of reasons for error.

One common reason witnesses can seem to have diametrically opposed versions of reality, when neither is lying, has to do with language.  When my son was four years old, he was being particularly cranky one evening, whining out loud while I was trying to watch television.  I told him to behave himself or I’d put him to bed.  He quieted a bit, but only momentarily.  So I repeated my threat.  “Behave,” I said in a louder and sterner voice than the first time, “or you’re going to bed!”  Once again, the threat worked only briefly, so his whining began again and I repeated my threat a third time, even more sternly than before.  Again it worked, but when the whining returned only seconds later, at the limit of my patience, I cried out “Daniel, behave!!” in the fiercest tone I could muster.   Frightened nearly to death by my obvious anger, his chin trembled in fear.

“I’m haive,” he assured me.  “I’m haive.

The point is, words mean different things to different people.  Language can get in the way.  To my four year old son, I might as well have been babbling.  Was it his mistake, to misunderstand, or mine, to assume he understood what it meant to be have?  It was, in either case, a failure of communication.  And failure of communication consistently ranks high on lists of reasons for mistake.

Sometimes, we have trouble communicating even with ourselves, and when this happens, it suggests different reasons for error.  A couple of years before we left Florida, on a winter day Karen had invited two guests to the house to paint for the afternoon, I agreed to cook them a meal.  A wall of sliding glass doors that looked out to the swimming pool gave the kitchen the best light for painting, and because of the light, it was the ladies’ chosen spot, as well as my work area for the day.   The meal included  a spiced chutney for which the ingredients  included coriander, cumin, and a little cayenne pepper.  Soon after preparing the chutney I felt a burning sensation in my right eye.  I rubbed the eye with the back of my hand, and then with a wet cloth, but rubbing the eye seemed only to increase the burning sensation.   My tear ducts went into high gear, but despite this natural defense, the burning did not abate.

I’d just recently started wearing contact lenses, and fearing that a lens could be trapping the offensive powder against my cornea, I worried it might be the reason my tear ducts were being ineffective.  The worry was heightened when I went to the sink and flushed my eye with a glass of water, with no consequent reduction in pain.

The urgency of removing the spices became an urgency to remove the contact lens – but I realized quickly that I was having great difficulty even locating the darn thing.   When I tried to squeeze it off and out, my fingers came up empty.  My inability to feel it suggested two possible explanations.  As had happened before, it might have become so closely fitted to the cornea that underlying suction was simply preventing its removal.  Alternatively, all that tearing (or the water from the sink)  had washed the lens down into the eyelid where (having assumed the shape of a folded burrito packed with spicy powder) it was making elimination of the powder impossible.  With the burning sensation getting stronger by the second, I raced from the kitchen to the closest mirror – in our bedroom upstairs – and pulled the lower eyelid down in a search for the offensive lens.  But what with hyperactive tear ducts, pain, and the lack of a functioning lens, my poor eyes couldn’t tell whether the lens was in the eyelid or not.  I couldn’t feel it there, or folded into the upper eyelid, or stuck stubbornly to the cornea itself.  Ever more determined to remove it, I kept pinching at the lens with my fingertips from everywhere in the eye socket it might possibly be.

Unsuccessful, I ran back downstairs, flung open the sliding glass doors and crouched at poolside, dunking my head into the winter-cold water, thrashing my head to generate as much flow as possible, convinced that this, at least, would flush out the offending lens.  But when I lifted my head from the water the pain only increased.  The ladies were laughing now, asking what in the heck I was doing.  But caring only about the pain, I shut my eyes.  The pain increased.  Again and again, I tried to fish for the offending lens, sure that it was to blame, wherever it was

In time, the pain eventually stopped – but not until the ladies suggested I thoroughly wash my hands.  As soon as I did, I realized I could use my fingers to pinch around for the missing lens without adding more spice to the mix.  But even then, I couldn’t locate the lens.

Able at last to see well and think straight again, I found my glasses on the kitchen counter.  Only then did I realize the depths of my folly.  Removing the glasses had been the first thing I’d done, even before rubbing my eyes with the kitchen cloth.  I hadn’t been wearing my contact lenses that day at all.

How does one classify such an error?  You could ascribe it to my inexperience in the kitchen and consequent failure to wash the spices off my hands.  You could ascribe it to my inexperience with contact lenses.  You could ascribe it to my bad decision-making when under pressure, or to forgetfulness, or to lack of focus.  You might say that habit was to blame, as the removal of my glasses at the first sign of irritation was one of those unconscious habits that are so automatic we forget about them.  (In that case, lack of self-awareness about my own habits was also to blame.)  Finally, you might ascribe it to the  presence of an idea – a false idea, but an idea nevertheless – that once in command of my attention, made all the other reasons irrelevant.  The idea that a contact lens had trapped the powder had  supplanting the powder itself as the culprit in need of ferreting out.  I’d entirely made up the story of the folded contact lens, but it was so graphic, so real, so painfully compelling, that it became the thing I focused on; it took command of my world.

One conclusion I draw is that it’s hard to classify reasons for error neatly into distinct types, because any one error may result from all sorts of factors.  But being human, I’m prone to think in terms of types and classifications; they help me think I better understand the world.  And when I do, I’m especially fond of this last-mentioned cause for error – the false stories we tell ourselves.   False as my story about the contact lens  was, IT was the story playing out in my head; IT created the entire world with which my conscious self interacted.  For all intents and purposes, it became my reality.

I’ve enjoyed reading psychologists, philosophers and story-tellers share thoughts about the stories we tell ourselves.  I’ve especially enjoyed reading opinions about whether it’s possible for the human brain to know whether the world it perceives is “real” in any sense distinguishable from the stories we tell ourselves.  Ultimately, I don’t know if creating these stories is the most common reason for our errors or not, but I think they’re among the most interesting.

Finally, to F. Lee Bailey, in addition to conveying my thanks for getting me to think about the reasons people may be wrong, I’d like to convey a suggestion: that, possibly, people lie more often than he supposed.  Possibly, they just do it, most often, to themselves.

— Joe

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One thought on “Thanks to F. Lee Bailey – Part Two”

  1. You are describing an experience of reality. It could have played out in other ways, and then it would have been a different reality.
    I recently conjectured about this, and the future of VR, that it will be possible before too long, to be able to experience the other realities, to dial up experiences from extensive menues. Today’s technology, in 20 years, will be like Pong was relative to computer gaming. It will become Star Trek’s Holodeck. And the attention people now pay to their smartphones will be nothing compared to our focus on our ‘virtual’ lives.
    Until we find our glasses on the countertop, that is.

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