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Finally, the conclusion of my friend,Lawyer A’s “Rashomon” Slip & Fall Case. Thanks for your patience!
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EYEWITNESSES: RASHOMON
As some of you might know–“Rashomon” is a classic Kurosawa film that recounts the events of a rape through the eyes of various witnesses. Each witness, however, recounts a different story–a different observation. There’s an old saw among police detectives: “When you have a homicide you want ONE EYEWITNESS AND ONE ONLY.”
This seems counter-intuitive to us all–as we’ve been raised on notions of “two head are better than one…” and so forth. But in a court of law where burden of proof is the standard…this notion breaks down completely b/c of the Rashomon factor. No matter how much you may believe in the Platonic absolute of “truth,” different people see the same event, or instance or object differently. This Rashomon effect can be especially exasperating in a criminal case–hence the Detectives’ mantra about “One Eyewitness.”
To illustrate…imagine if one eyewitness sees a homicide. He identifies the accused and confirms that he was a medium weight white male wearing Levis and a white tee shirt. But imagine if 5 other witnesses come forward one insisting he was wearing chinos, and another saying he was a black man…and another saying he had a collared blue shirt on…………Can you say “reasonable doubt?”
Nevertheless this variety of witnesses makes investigation exciting and satisfying to the curious mind—it also it can lead to a way of finding one true thread in a case…and no case is won or lost or solved until on or both of the parties fixes to one true thread.
WITNESSES AND THEIR THREADS
First Witness: E.L.
My first witness interview was with E.L… he was the branch manager on May 21, 2009 when JH fell on the XYZ steps. E.L. began by telling me he remembered nothing of the incident. But, because I knew the identity of everybody involved I mentioned to him: “Well you were meeting with Steph and Janice that day….do you remember now?”
He thought about it and said:
“You know now I remember that a lady did fall on the steps b/c I remember Janice saying: ‘HOLY SHIT, THAT LADY JUST FELL!!!”
I said to him: “She said ‘HOLY SHIT’?”
He replied: “Yeah, she did—you gotta know Janice that’s the way she speaks.”
After that E.L. couldn’t’ tell me much more..(but he had told me enough).
Second Witness: Janice.
Even before speaking with E.L., I had identified (from documents) that Janice was THE eyewitness to this event. And I set up an interview time with her. Our first interview time was postponed b/c she was giving birth to her daughter. I worked around this schedule and set up an interview for 5:45pm on September 15. Janice’s husband would be home and would take care of the infant while I talked to her on the phone.
What Janice told me about the incident is eyewitness gold…… This is basically how it went:
“I saw Ms. J.H. walking up the walkway to the bank and she was going toward the steps on the left. And she went to those steps and started walking up them on the left side. She was holding the railing on the left side. While walking up the steps she took her hand bag in her right hand and tried swinging the loop onto her right shoulder….. And she swung the loop up there but she let go of the hand bag–which looked heavy–and it went down and swung her too…and she lost her balance for a moment, and then stumbled down the steps back to the walkway… and she still was there standing but then suddenly she went down.”
“How far up the steps was she when this happened?” I asked.
“Halfway up,” Janice replied.
“Now when you saw this, what did you do?”
“I, said….’my god’ that woman fell down'”
“Now, Janice, I talked to E.L about this and he said to me that you said: ‘HOLY SHIT THAT LADY JUST FELL.’
Upon hearing this Janice burst out laughing and said:
“OH MY GOD—THAT’S EXACTLY WHAT I SAID.”
I continued: “I want to know exactly what you said b/c opposing counsel will expose every inconsistency in our witnesses to suggest that our memory of events may be questionable.”
She assured me: “NO, NO…That’s what I said.”
At the time, I didn’t know this—-I was in Rashomon mode…..I had two witnesses..one (E.L) who remembered nothing but an utterance..and another, Janice, who remembered everything but her exact utterance.
But what happened next was the convergence of all loose ends. And I think I found truth.
Third Witness: Steph
I spoke with Steph at noon, September 16 in my office.
“Steph do you remember a woman falling on the steps at the bank on May 21, 2009?”
“No.”
“Do you remember any woman falling while you worked there?”
“No.”
“Do you remember meeting in E.L’s office with Janice on May 21, 2009?”
“No…I’m sorry–I don’t remember any of this.”
“Do you remember Janice saying: “HOLY SHIT, THAT LADY JUST FELL!”
“YES!…YES!!! SHE SAID THIS, OH MY GOD, I REMEMBER!”
And then she went on to recount various details about the day.
What I discovered from this exercise is that memory is fleeting and subjective..memory is as beautiful or ugly as you make it……But that’s the poetic side of memory. The working, practical and honest side of memory is more physiological…it proceeds from the five senses…sight, sound, smell, touch, and speech…and these physiological “docking stations” are less prone to mull it over–they just observe and recount…they don’t rehash or consider–they react, instinctively. And it is that unconsidered and uncontrived instinct that is the litmus test of truth when it comes to witnesses.
The trigger of “Holy Shit….” triggered Steph’s memory. The fact that it did convinced me that that was exactly what was said.
RASHOMON REDUX: THE ESSENCE OF TRUTH
But what was “said” is only one piece. Nevertheless it is the essential and trumping piece here b/c it is triangulated and confirmed by three witnesses w/o any other piece so confirmed and triangulated.
It’s this one piece that can make or break the case if it goes to the jury. This is because nobody will ever know exactly what happened. We can only interpret based on recounts from witnesses. And if as jurors we endeavor to find the truth we endeavor to find the recount or recounts that are most consistent. All consistency must reside on common links and overlapping observations.
The only overlapping and consistent observation in this case is the utterance “HOLY SHIT THAT LADY JUST FELL!”
Once the jury is convinced that that is what was said—I win the case because the utterance is attributed to Janice as truthful and by association everything that Janice says she observed is considered truthful….
CONCLUSION
Taking witness statements in cases like this is all the great fun of the law. It mixes lawyers and layperson’s skills. The layperson in me recognizes the sincerity and truth in a statement beginning “Holy Shit….” We all hear that every day–that’s how people speak–it’s real–and therefore credible. The lawyer in me loves the part of orchestrating all the interviews and “chessing” this out to show to opposing counsel bringing down his demand from mid -six figures to mid five figures…and ending the whole affair.
It’s these moments when I love the law…I do pity the fact that these moments, however, make up about 3% of my practice…
Cheers.
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Major snooze fest ovah here.
Long pieces are not for everyone.
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cool story bro
MRI’s, & etc have uncovered much new knowledge of the brain. Most of what the brain does is Not accessible to the conscious mind. Going with your gut instinct is really going with your subconscious mind.
Memory is not Read Only. Any time a memory is recalled there is a danger of it being re-written. This has been proven in rape cases where the victim picked a somewhat similar person from pics (if I recall correctly)Oops, dna did not match.
Your senses can record things that you are not consciously aware of.
Also the brain is not one thing but a “team of rivals”
One trick to access some of this info (if you have 2 choices) is to flip a coin & say to yourself (btw, who’s talking to whom)I will do what the coin says. If you are or are not happy with the coin toss, you have discovered what your subconscious mind has calculated. Of course it could be wrong to.
Anyho, [sic] things are not always what they seem.
“Incognito”
OT Silver down; SLW up?
Miners showing some strong RSI here.
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Noticed the strength in the miners. Would you still sell them if dolla passes 78.10?
I would imagine they would not be showing +RSI at that point.
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Here is a good read on evidence that suggest, that every time we access a memory it is formed anew.
Every time we tell a story from memory, we may re-tell it to ourselfs. So that is probably why politicians ( and other folks ) often actually believe the nonsense they are spouting, they just need to tell it often enough…
The problem with picking the pictures I heard of is:
– People watched a tape of a crime.
– They were given a set of random potraits which did not include a potrait of the criminal
-> Most people did not identify a potrait as the criminal or were unsure about their pick
– A few days later they were given a second set of pictures where one of the portraits was from the first set of pictures (the other ones differed).
-> An alarming number of people picked the portrait from the first set with great certainty. It did not even need to match the look of the criminal they had seen very much!
The act of recalling the memory of the crime while scrolling through the portraits links them to the memory of the crime… Many innocant have gone to jail because of that, other ways the memory plays tricks on us and the ignorance of this fact by many judges an law personnel.
The first response in the first interview is the closest to the truth as one will get (like in this here story). Everything after that should be dicarded.
Here:
http://ebookbrowse.com/how-our-brains-make-memories-pdf-d127362259
I want the bad guy (bank) to win
The bank is not the bad guy, doofus.
(Sheesh)
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Interesting! Now all my comments are in Italics!
I think I like it!
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I think the bank does win.
A prima fascie cas for negligence will require both factual and proximate cause as elements.
Here the woman, by “loading her purse to the gills” was the “cause in fact” of the fall. (but for the heavy purse the woman would not have toppled over)
The bank is in the clear.
“case” not cas. Typo.
I prefer what you usually do because this is why we are here. However, I do find this very interesting because it show as your friend says “that unconsidered and uncontrived instinct … is the litmus test of truth when it comes to witnesses.”
This was supposed to be a “weekend piece” but bled over thanks to some technical difficulties.
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I thought this post was awesome Jake, well done, very scholarly and totally gangster.
Fwiw it could have been 4x as long and I still would have read it w/ interest.
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Not to mention to ABSOLUTE PARALLEL to trading in that all trades, whether technical or fundamental in nature, depend on a difference in the rate of cognition, as in it is that gap in perception that causes you to buy before the next guy and sell to him.
Enjoyed the conclusion.
The witness corroboration is very true about human nature and is especially important to understand when talking to a jury.
I find it interesting that Lawyer A would want more of these cases as they are only about 3% of his case load.
I may not know much, but I do know the grass is always greener on the other side.
Having more of these cases requires many more hours of work and away from family.
Well, I enjoyed the post, and memory and instinct relate to trading.
I certainly remember those Google massive moves on OPEX day, and every time earnings come up I consider a speculative play.
Good story!
S&P downgrades Italy and suddenly we’re all speaking in italics…
Coincidence?
Eich bin ein Eyetallions!
Thanks Jake. I enjoyed it.
Jake.
Sent you an e mail.
Did you send to the jakegint email acct? Thanks for letting me know, as I hardly ever check it..
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Yes. The iBC email account.
Just a story.
I will have to ask Jeremy how to access that account, lol!
[email protected] is a good one too.
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Good one.
Okay.
Will send to the above.
Little nibble on AG and FNV earlier today.
And keeping an eye out for more SKF
I doubled BAA and XRA earlier today.
Also added AG, EXK, GDXJ, SIL and RGLD.
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JG – I’m looking at a daily chart of SKF for keys in where to look for next nugget to add. I initially looked at 50day EMA (73.13) however last few down turns have broken the 50day. I was going to put an order in right around 50day, but now I’m not sure. Any insight?
Thanks!
And full STO looks like it is crossing upwards ( I think)
Was eyeing under $74 and looks like missed opp for today.
Sorry, I missed this… I’ve been using the weekly charts for SKF, since I’m going to hold it for a while (crazy, I know). It’s been respecting the 34 week EMA as a “base” and recently, the 13-week EMA has been a good buy on the dip point…
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Holy Shit! What a fascinating tale! Glued to my seat, gripping, captivating!
Can’t wait for the conclusion!
Good Ol’ Giants.. have to stoop this low:
http://www.youtube.com/watch?v=Pzo3rK3Q47A
I liked the story, even if it was off topic.
How about that SKIFFLES Jake? Great call.