My Jamaican grandfather used to say, “There are three sides to every argument; your side, my side and the truth.” And my mother used to ask my brothers and me, “What is this argument really about, because it’s not about this…” (whatever this happened to be, a slice of pizza, who got to sit closer to the television, etc.).
I’m happy to join this conversation about “A Civil Action.” In the book, there are multiple people with multiple visions of what the story was really about. There are people who were drinking contaminated well water. Many of them were made ill by something. There are the lawyers, who have very different visions of what that something was, and of the relative roles of plaintiff’s lawyers and defense lawyers, and of the import of the larger narrative. There are the competing government narratives – the engineer who certified the water safe, the mayor who was trying to avoid drought conditions and make water affordable, the EPA regulators who were trying to find out what happened, while avoiding being sucked into an acrimonious lawsuit. There are scientists and doctors trying very hard to account for water flow underground, and the timing of the leach of chemicals into wells, and the relative concentration of particular chemicals, and the carcinogenic effects of those chemicals. Some of them may have been acting in bad faith, others in good faith but misguided, others still may have been absolutely right. And there is our invisible narrator, who needs a hero for his story, and he has chosen plaintiff’s lawyer Jan Schlichtmann despite, or maybe because of, his flaws. Their varying roles were crucial lenses through which they viewed the facts of the case.
I was a newspaper reporter before I came to law school, here at UNC. After I graduated, I was a clerk for an appellate judge, then an attorney at a major law firm, where I was a defense attorney in white collar criminal cases, an internal investigator for companies, as well as a civil litigator in cases involving, among other things, toxic chemicals and groundwater. I left private practice to be a federal prosecutor, where I prosecuted white collar and violent crimes. In that role, I had access to the grand jury, the subpoena power, search warrants and the help of trained federal agents. And I was often litigating as the lone lawyer facing a well-staffed and well-funded team of defense attorneys.
Wearing all those hats convinced me of the truth of another aphorism: anyone who claims a monopoly on the truth is selling something. The more heated the argument, the more I’m convinced that my grandfather was right. There are at least three sides to every argument. And the more passionate the parties, the less willing they may be to take heed of this, because that passion is often driven by something else. When I fought with my brothers over the last slice of pizza, the passion in that fight was informed by many things that had nothing to do with that slice.
As you think about “A Civil Action,” I invite you to think about the blind spots that come with having a point of view. Confirmation bias is an important cognitive phenomenon. We all incorporate facts that support our preconceptions into any narrative we are crafting, and dismiss facts that don’t. If we “know” what something is “really about” before we get started, it becomes increasingly difficult to hear, and sometimes impossible to heed, facts that run counter to our understanding. And in the context of a trial, making sufficient room for uncertainty, while still demonstrating certainty about the facts you need to be true, is science, art and black magic rolled together. For judges, trials and wide-ranging searches for the truth tend to be antithetical. I will come back to this in my second post about “A Civil Action,” to talk about how evidentiary systems are designed to narrow, not broaden the focus of the finder of fact.
But I hope this story about a trial will be one pathway into a wide-ranging quest for insight and understanding. Since I have returned to UNC as a professor, I have taught criminal law, criminal procedure, evidence and legal ethics. Those lenses have all informed my own rereading of this book, which I first read in the summer before I, too, entered UNC School of Law. My time as a practitioner and a professor mean I see the book very differently now than I did then. One of my most important jobs as a professor here at one of the nation’s finest law schools is to create space for a brilliant and diverse community of students to engage with each other, and to test their ability to listen. They don’t have to agree with each other. I expect them not to. But they have to hear each other. And I probe and test that ability to listen as a professor. We each have to be able to articulate and explain our own side. We have to hear, understand and engage with the other side. We have to be able to explain their argument as well as our own. And with any luck, here, within our walls, as we explain our side, as we listen to and argue against the other side, we will come a little closer to the truth.
Posted by Richard E. Myers II on Thu. July 25, 2013 11:44 AM