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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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