Perspectives on Evidence | News for the workers comp industry

One of the great challenges in teaching students who want to become lawyers is their view of facts. There is a tendency to see facts as absolutisms. I sometimes struggle to get them to accept, or at least consider, that there can be two perspectives on a given set of facts.

I stress that one of the great advantages of being a lawyer is being able to analyze any situation after the fact. There are lawyers who make careers in the advisory or counseling role. These precede many prospective analyzes and are used for many “what if” questions. Even for trial attorneys, there are times in court proceedings when an attorney needs to make a quick decision on tactics or procedure. But for litigators, much of their analysis relates to past events. You can color them carefully (stay within the lines), or you can paint them abstractly a la Picasso or Pollack.

Psychology Today explains that

“A Monday morning quarterback (MMQB) is a person who criticizes, makes judgments, and offers solutions to problems after the fact. They are very easy to find today…”

The ability to examine and criticize lies in all of us. And it turns out we all tend to second-guess our own actions. There is a “hindsightedness” that pushes us to “write stories that make sense based on the information we have.” We tend to “encourage a positive view of ourselves” in these flashbacks, and in doing so we may be preventing ourselves from “learning from experience or delving deeper into the powers that be and making a more thorough analysis of what happened.”

You see, the lawyer is allowed to direct the temporal focus and the singularity of the perspective to what is happening and explain it in a similarly positive way, but “advertise the client for a positive perspective”. In what explanation or perspective does the client look most profound, least in debt, most hurt? You see how Don Henley presciently entered The End of the Innocence (Geffen, 1989): “The lawyers are cleaning up all the details.”

I thought of the concept recently when a football player made headlines in Miami. It is imperative that we remember the factual statements made in the news reports. We must remember that actual facts may or may not be accurately described in such reports. We use juries to sort out the differences in perceptions and representations. And every story almost always has two (or more) sides. A jury, like trial attorneys, can retrospectively (MMQB). Since no assessment of facts has been made, this example provides assertions and perspectives.

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An airline allegation the footballer was removed from a flight in Miami. Local 10 News reports that this was a 9:30 am flight from Miami to Los Angeles. Forbes reports that the airline said it “did not follow instructions from flight crew members.” The flight crew expressed “concern () about his health.” They allege that he did not respond when told to buckle his seat belt, or that he “refused”. The crew described him as “apparently coming into and out of consciousness.” So the plane returned to the gate. The Associated Press reports that emergency medical personnel were called.

The football player then graciously apologized for wasting everyone’s time, acknowledged that he had caused a disturbance, and quietly got off the plane as requested. Just kidding. He “allegedly refused to exit the flight when told to do so by the crew.” Instead, all passengers were ordered to disembark, and “after all the passengers were unloaded and the police intervened,” he graciously exited the plane. The Forbes article makes no mention of apologizing to one of the passengers whose day was cut short. Local 10 News quoted one passenger as saying, “The whole ordeal delayed us by two and a half hours.” An Associated Press article claimed some passengers “grumbled.”

There have been some reports of the soccer player making some comments on social media about his disdain for the way he was treated. It appears that he viewed the airline’s decisions and actions as unnecessary or unfavorable. Soon, his attorney provided an explanation, according to Forbes. He says the footballer “fell asleep with his blanket over his head, which is his usual practice on long flights”. The lawyer alleges that when the footballer finally woke up and was told the flight was returning to the gate because he had ignored the perception that he had ignored instructions, the footballer offered to buckle up. Interestingly, the news doesn’t mention actually buckle up.

The lawyer “puts the blame for the incident on ‘an overzealous flight attendant.'” While that offers perspective, there’s little to dispute in the Forbes article that the crew made efforts to wake the passenger, that medical assistance was called, or that they had serious concerns about the passenger’s safety.

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So the hindsight in this case seems largely related to the player’s public image. Perhaps public image would have been preserved by politely exiting the plane when instructed? It’s possible that delaying all passengers for hours wasn’t the best way to minimize attention in such a situation. The fix might have been done early in the experience. In many years of flying, I can only remember once seeing people with blankets over their heads for a mid-morning takeoff. As far as I remember, that was a Vegas departure.

But what would be the prospect if the flight attendants ignored their consciousness concerns, simply buckled the passenger in their sleep and took off? Maybe that was the better course? Imagine the plane that hypothetically lands in Los Angeles with a comatose passenger and the questions the attorney may have asked Monday morning (MMQB).

  • Isn’t it true that my client didn’t respond and didn’t wake up?
  • Isn’t it true that you and other crew members have expressed concern for his health?
  • And despite these concerns, you chose to buckle up an unresponsive passenger and continue a 4-hour flight regardless of his or her condition?
  • There was no known doctor or other medical expert on board, was there?
  • Let’s be clear, there was a blanket draped over the passenger’s head, wasn’t it?
  • Would you agree that putting a blanket over your head at 9:30 in the morning could be unsafe?
  • And if you had returned to the gate and called for medical attention, my client might still be alive, right?

You see, there is no statement at the moment. It is possible that the player has boarded a flight and is unruly (ignored or disregarded). In my many miles of flight, I’ve seen many passengers start a mask fight, but none fight with the seat belt. It seems pretty unlikely that anyone would irritably refuse to buckle up. That means it’s possible.

It is also possible that a medical condition is present at this moment and requires attention. There can be a difference between “I’ll put it on now” and “I’m sorry, I buckled it now”. It is helpful when someone expresses their well-being (“I’m fine now, thanks”). But I’ve seen some people with medical problems that they couldn’t recognize; a good friend of mine once went to the hospital herself with a headache and had to be told by the receptionist that she was having a stroke (which she initially protested vehemently). It is possible that at this moment there are facts that you simply do not know and that you may find difficult to ascertain personally.

If only the lawyer had been there in person to make the necessary decisions. If only the attorney were there to make personal, first-hand observations. But like the jury, the MMQB looks at everything in retrospect. Certainly with the help of the lawyer (artist) who paints the picture, but afterwards.

In the end it can be said that there were some different perceptions of the man with a blanket over his head that morning. The decision to take this player off the plane may have an impact, but it could also have impacted taking off with a sick and unresponsive passenger. The fact is that in hindsight, the current decisions can under no circumstances be considered the best. This can affect the ceiling over your head or the return to the gate. This may apply to refusal to disembark or to disembarking all passengers.

Before anyone gets too accusatory about whether anyone involved was recalcitrant or overzealous, we may first admit that neither of us were there. Those who were present made their decisions (do not leave the plane, return to the gate). These decisions were in the moment and could look different on Monday morning.

What is relevant, compelling, or persuasive? It is all in the evidence, the content and presentation of the testimony, and in the eyes of the fact finder when it comes to a trial. In the absence of trials, the determination of facts will be left to the public, and perceptions and conclusions will come from the “court of public opinion.” In the end, procedure or not, there will likely be no right or wrong. There will only be assumptions and maybe accusations.

In the end, most of the bravery might have been a sincere apology to the many people inconvenienced by forgetting or refusing to simply buckle up. But it depends on perceptions and decisions in the moment and how they are characterized or believed by the MMQB. It is the analysis and perspective that the aspiring lawyer must understand and master.

By Judge David Langham

Courtesy of Florida Workers Comp