Is Our Legal System Truly a Justice System?

There is a fatal flaw in an important point set forth by Commissioner Scott J. Nord in his article Man plans, and God laughs: The emotions of litigation that was published in the March 22, 2022 edition of the Daily Journal. That flaw is the assumption that judges and jurors make accurate factual findings. In his article, he states as follows:

"For the losing party, the loss will replay in their minds over and over again, never changing. The ability to let go and move on from a loss requires one essential step – the willingness to admit their own fault or part in what happened. But, as humans, we do not like to admit fault [that we may have played a part in negative events]. The losing party will continue to insist that nothing was their fault. Purposefully or subconsciously, facts will be twisted to be favorable to them; they will seek to convince others of what the outcome should have been. Fault for the loss will lie with everyone else – lawyers (including their own), judges, jurors."

The proper application of the law to inaccurate factual findings leads to legal injustice, something that research has confirmed occurs far more frequently than people realize.

In a 1991 study, Paul Ekman and Maureen O’Sullivan proved that California judges fared no better than random chance in making factual findings based upon demeanor evidence. Other researchers have made similar findings regarding jurors. Ekman and O’Sullivan also found that the length of time a judge has been on the bench does not improve their ability to decipher truth from fiction, although it likely causes them to be overconfident and overestimate their abilities in that regard.

Understand the implications of this reality. If one, two, three, or four facts in any given case are in dispute and the trial judge or jury makes factual findings based, in part, on their interpretation of demeanor evidence, there is a 50 percent, 25 percent, 12 ? percent, and 6.25 percent chance, respectively, that their assessment of all those facts will be correct.

Do you have any idea how many factual findings are made in any given case based upon credibility determinations of people’s demeanor? It is rarely just one in any given case. What that means is that if, for example, four such findings were made in a particular case, there is a 93.75 percent chance that at least one of the factual findings made was wrong. To add insult to injury, nothing has changed even though this has been known for over thirty years, as well as that appellate courts are more likely to make correct factual determinations because they do not receive demeanor evidence and can focus on inconsistencies in testimony while reading transcripts. We have the audacity to refer to our legal system as a justice system; yet, we clearly have no interest in doing that which is required to reduce legalized injustice, by allowing appellate courts to change a trial court’s factual findings when there was some evidence in the record supporting such findings.

Based upon the statistics, losing parties’ claims that the trial court made erroneous factual findings that resulted in a legalized injustice is much more likely to be accurate than that the trial court made no erroneous factual findings. Who is responsible for inaccurate factual findings made by judges and juries which are the basis of the verdict, and those findings cannot be overturned on appeal? It seems that Commission Nord and a great many others tend to overlook these realities and instead blame parties, a great many of whom were victimized by our justice system. It clearly happens all the time, based upon the statistics, which have been known for over thirty years. People like me were victimized by such legalized injustice and then those responsible blame us by saying that we later twist the facts, seeking “to convince others of what the outcome should have been.” How about the very real possibility that we were victims of traumatic legalized injustice, and now we are being further traumatized by being called liars by those responsible?

I have personally experienced the legalized injustice that ensues from the correct legal outcome based upon inaccurate factual findings. That experience is what caused me to stop working within the adjudicative or even the adversarial process itself. It caused me to experience a major paradigm shift. It also led me to shift what I perceived as my job from lawyering or even later mediating to research and writing, something for which I have never received any income. This transition was what I needed to do to experience post-traumatic growth from something that caused me so much trauma. I lost so much more than just money and the emotions “invested in the outcome,” from my experience in court.

The case to which I am referring involved a creditor claim filed against my mother’s estate by her ex-husband, who was not my father.

My mother died from Stage IV breast cancer and kept her condition from almost everyone including myself, my siblings, and my maternal grandmother. The one person other than those at her oncologist’s office who knew of her condition up until approximately 1 ? years before her death was that ex-husband, who used to take her to her oncologist. We all knew my mother’s condition was not diverticulosis, as she was telling us, especially since she had a history of recurrent breast cancer. One day when I was alone with her ex-husband, he confided in me that she was, in fact, suffering from Stage IV breast cancer, he described the location of the cancer to me, and he swore me to secrecy. My mother later shared her condition with me and swore me to secrecy. I never told her that I already knew.

Meanwhile, my siblings and maternal grandmother suspected I knew more about my mother’s condition than I was sharing. They told me that if they ever learned that I had kept such information from them, it would be the end of our relationship. I kept begging my mother to tell them or to allow me to tell them because the secret was causing serious relational issues. She refused until less than a month before she died.

One of the many factual findings the trial judge made in that creditor claim involved whether my mother’s ex-husband knew that she had Stage IV cancer before she died. This was legally relevant because he was suing her estate based upon a creditor claim and the other party to the alleged verbal agreement was deceased. Waiting for the other party to the alleged verbal agreement to die meant that only one person knew the terms of the alleged verbal agreement – the claimant.

Since I first learned that my mother had Stage IV breast cancer from the claimant, I knew he knew of her condition. The problem was that by admitting I had learned of it from him, I was testifying that I had deceived my siblings and maternal grandmother, even though I had been sworn to secrecy and the information was not mine to share. The trial judge did not believe me and found that the claimant was unaware that my mother had Stage IV cancer and therefore did not wait until the only other party to the alleged verbal agreement was unavailable to defend herself. I also promise you that this was not the only erroneous factual finding made in that case.

I lost much more than just money and my emotional investment from that loss in court. It led to the end of my relationship with my siblings and maternal grandmother, with whom I had previously been extremely close. Several years later, I learned of my grandmother’s death in a letter from an attorney, advising me that I had been disinherited. What occurred in that case caused me to lose a great deal of money, familial relationships, and my faith in our “justice system.”

Commissioner Nord is correct that my loss in that legal case permanently corrupted my “perspective of the entire judicial system, even if the correct legal outcome ensued.” However, Commissioner Nord is incorrect as to the reason. The correct legal outcome did ensue in that case; however, only because of the inaccurate factual findings upon which it was based.

If the fact that those responsible for dispensing “justice” continue operating under a belief that was proven false more than thirty years ago is not bias, or “an unfair personal opinion that influences [their] judgment,” what is it?

Is it any surprise that the focus of my research and writing has been on the topic of bias, its impact, and what can be done to keep it in check, to the extent possible? Bias, but not that which the legal community tends to perceive as bias, caused me to lose almost everything. In fact, it almost caused me to take my own life before I went into therapy twice a week for two years prior to starting my research and writing which led to my post-traumatic growth. Now, my published work on bias is even part of law school curriculum in some law schools. How is that for turning lemons into lemonade?

As an aside, what makes Commissioner Nord’s article even more offensive than it otherwise would have been is that he referenced Paul Ekman and his research on emotions in his article, although his misspells his name as Eckman.