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An Open Letter to Litigators (i.e., Unreliable Witnesses)

Updated: Jun 9, 2023


Michael Okerlund writes a letter to all litigators

Dear Litigation Friends:


It is with regret that I write to inform you that you are a profoundly unreliable witness. You’re an unreliable witness to the depositions you took and you’re an unreliable witness to the depositions you defended. And if you have been—as I have been—a serial witness, then you should know you’re an unreliable witness when it comes to your own testimony, too.


Your problems are legion and among them are these: studies (a lot of them[i]) show that you recall with perfect clarity things that didn’t occur and you fail spectacularly to recall things that actually did. If you take or defend witnesses with any frequency, you know this to be true. If you bother to read your transcripts, then you’ve noticed with alarming frequency the instances in which you specifically recall that a witness said one thing, but the transcript later reveals quite another.


Think back to your last trial, my friends. In your preparation, you reviewed testimony occurring early in a case. In reviewing that testimony, you were surprised to discover important information you didn’t know you possessed. And you realized—too late—that you failed to use it in motion practice or settlement or witness outlines or impeachment. Over time you’ve inwardly acknowledged that your memory is an imperfect vessel. Alas, so is mine.


There are, friends, many reasons why we should maintain a healthy skepticism about the case narratives we build in our heads. One big reason is that our brains are biased to look for conformist data and ignore anomaly data. As Philip Tetlock aptly observes, “We don't naturally look for evidence that could falsify our hunches.”[ii] We are not naturally what Karl Popper termed “falsificationists,” actively seeking evidence that undermines our cherished beliefs. Instead, we cleave hard towards conformist data—so hard, in fact, that we often invent it.[iii] Conformist data in the form of flawed testimony memory feels good. It feels good because it resonates with the internal narrative we want to be true.


We construct, to our peril, narratives that are fictional rather than factual. Instead, what we need to assemble are testimonial narratives that possess the twin luxuries of being both compelling AND true. But that entails understanding testimony. And until recently, that meant a substantial investment in time. In larger cases—MDLs, class actions and antitrust cases involving “big testimony”—it involved huge investments in time. Thankfully, emerging technologies can help. AI tools can help.


Non-illusory advantages can be obtained by having a more perfect understanding of the testimony. Both the testimony that supports our cases, but also a more accurate understanding of the testimony data we are hard-wired to ignore, namely testimony that supports our opposition’s case. Only by seeking out and coming to grips with both can we insulate ourselves from errors and omissions and build rock-ribbed cases that can withstand the hard and patient scrutiny of smart folks on the other side of the “v.” Folks that are highly motivated to make us look foolish when we hand them the ammunition to do so.


If you want to learn more about how artificial intelligence can help you dismantle your biases and find advantages hidden like truffles in a forest of testimony, call us. We’re the only Testimony Intelligence company in the world. And we’re here to help.

Sincerely,


Michael

[i] Mark L. Howe and Lauren M. Knott. The fallibility of memory in judicial processes: Lessons from the past and their modern consequences. Memory. 2015 Jul 4; 23(5): 633–656. [ii] How to Win at Forecasting, A Conversation with Philip Tetlock (https://www.edge.org/conversation/philip_tetlock-a-short-course-in-superforecasting) [iii] Howe and Knott, "The fallibility of memory in judicial processes," 633–656.

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