By Thomas M. O’Toole, Ph.D.
In many respects, success in litigation rests on the understanding and appreciation that the philosophy of the justice system and the rules of the game create and maintain a fiction that significantly departs from the reality of how decisions and verdicts are rendered.
The mistaken assumption is the Aristotelian ideal that logic and reason can and will save us. In this vein, the justice system, through trial courts, deploys a simple logical structure that presumes “evidence and testimony + the law = verdict.” We go to great lengths to carefully manage this fiction, whether it be public oaths by jurors to follow the law, admonishments to jurors to pretend they didn’t hear something, or pretrial rulings that pretend it’s possible to splice out strong emotional components of a case. Continue reading