Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.
A recurring issue in family law cases is the use of questions about a witness’s belief. “Do you think if she has custody she’ll allow you to participate in activities?” “Do you think despite your criminal conviction for violence against her that the two of you can exercise joint custody?” A related issue is when an attorney inserts her or his opinion about the case. “I believe she will deny visitation.” “I believe he is going to sell marital property.” These questions and assertions are problematic. Consider how our juries are instructed:
It is your duty to determine the facts of this case from the evidence produced in open court.
Your decision should be based upon probabilities, and not possibilities. It may not be based upon speculation or guesswork.
The statements, remarks and arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but are not evidence. If any statement, remark or argument of an attorney has no basis in the evidence, then you should disregard it.
OUJI Instruction No. 1.4
Trial is about facts. Rather than inspire confidence, the words”I believe,” “I feel,” and “I think” cause the listener to question the authenticity and legitimacy of the assertion. These words create uncertainty. “I think” or “I believe” change the focus of the sentence from the subject to the speaker. Even when the question or assertion is an established fact, using “I believe,” “I think,” or “I feel,” converts facts to opinions and ideas.
From an advocacy standpoint, converting facts to opinions reduces, and possibly eliminates, any value of the fact. As John Adams said, facts trump opinions. What lawyers think or believe does not matter, especially if it has no basis in the evidence. Oklahoma’s Rule of Professional Conduct 3.4(e) says in trial we shall not “assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant . . .” Our job is to present the evidence, the facts, in persuasive, compelling way, so that the conclusion reached by the decision-maker is favorable to us and supported by that evidence.
Stick to the facts. A detailed, fact-based story will overcome opinions and conclusory ideas that are not based on facts every time.