Friday, April 8, 2011
RE ATTACKING THE TEAM IN EMINENT DOMAIN CHAPTER TEAMING UP ON THE FACTS
This chapter has broad implications for many topics, terms search many terms on this site, academic interdisciplinary organization, politics, law, social seience, natural science, junk science, humanities, ethics, moral philosophy, previously addressed on this site.
I thought to print it here, for reference to the original practical context within which some of these multidisciplinary, and interdisciplinary, ideas first were assembled systematically.
I thought to print it here, for reference to the original practical context within which some of these multidisciplinary, and interdisciplinary, ideas first were assembled systematically.
TEAMING UP ON THE FACTS
Once the theme is selected, often early on in the aggressive team approach, the team must then deal with the actual facts in light of the theme. Twisting, turning, omitting, excluding, embellishing, and manufacturing the facts to fit the theme. This will all too often be the keynote of the chorus of preparation under an aggressive team approach.
Call me Pollyanna but I like to suppose that there was once a time, long long ago, say “back in the good old days”, in a place called Camelot, or Arcadia, when you had a factual case, based on “independent” expert opinion, and the lawyer made arguments, drew inferences, and enunciated themes, based on the facts. Not the other way around.
Nowadays, in the 'evil dark world' of eminent domain, the thematic tail sometimes wags the factual dog.
Lawyers come up with a theme or two, and generate both the theme of their case, and its facts even, based more on that theme than on reality. I’ve seen cases, on both sides, where the themes and the, quote, “facts” of neither side bore much resemblance to reality.
How far should a lawyer, or some other quarterback, regardless of discipline, or objective, go, (Machiavelli or Cicero, ends or means) in influencing experts’ opinions?
The hymns do sound better when the whole choir is singing from the same hymnal.
And true enough, unless the efforts of the experts are carefully coordinated, the report of one expert on the team will be inconsistent with reports of other experts on the team.
The question remains, what’s wrong with a little inconsistency among ostensibly objective experts?
What’s wrong with a wart or two on the theme of the case?
What’s wrong with singing out of tune, just a little bit?
What’s wrong, deep down, with the 'facts' as they are? (Phenomenology, of course, presents a modern conundrum for 'the facts as they are'.)
Going back to the throw down case, if the three officers’ stories hadn’t been such a unified, and identical, chorus of accusation, maybe that case would have come out differently.
No one doubts the need for coordinated effort on behalf of an owner or condemnor. No one would challenge the need for someone to take charge of this process for each side. No one would claim that good themes aren’t needed by good lawyers.
The fact remains: sometimes lawyers, and other quarterbacks in many firlds, go too far in managing this process. How far should a lawyer (or politician, or executive) go in promoting a particular view of the facts? In selling a theme? In reconciling honest differences among experts? In persuading experts to massage the facts?
Some people still may think, that the theme of the case should be based on facts, somehow.
After all, they aren’t the lawyer’s (or other quarterback's) facts, are they? Aren’t they the expert’s facts? (Aren't they, really, in principle, everyone's facts?) The experts’ opinions? I’m afraid some lawyers and quarterbacks just don’t think so. They believe the facts are their facts.
And believe me, ladies and gentlemen, they’re not out there just gently caressing the cheek of the facts here and there, gilding the lily so to speak.
They’re sometimes downright violating the facts. Owner lawyers may be a little better at this than government ones, but not much. Why, they will sometimes order their planner to put a super pumper or a strip center, on a low wet agricultural site, and then have their appraiser rubber stamp this opinion. Yet rule 4-3.4 prohibits obstruction and fabrication.
Tactically, many lawyers don’t worry much that the other side might object that part or all of their case is a fabrication, or a sham. This type of challenge doesn’t happen very often, or very well, in law or elsewhere, where lay non expert opinion is, itself, so suggestible. At least not yet…
If a lawyer gives an expert a supposed fact or theory, there is a risk that the other side will be able to use that supposed fact against him.
For example, owners’ appraisers often trot out condemnation blight. But they often don’t have the foggiest idea what blight is or how to prove it.
This can be quite comical. Remember that cartoon where the coyote dreams of catching the roadrunner, and you see him thinking of a nice roast chicken? Well, ladies and gentlemen, for the experienced wolf on the other side, the blight-slinging appraiser looks like a nice, roast, chicken!
Yet, blight is often a “dream theme” for owner lawyers: it has high emotional appeal. It’s so foul an accusation that, even though baseless, some juries buy it. Blight and other often spurious ideas are spoon fed to experts like pablum from their quarterback.
However, on the other side, government appraisers who fail to consider the issue when blight really exists can look like roast chickens as well.
For condemnors, the myth of no damages from the taking is an often spurious idea, very susceptible to team manipulation.
The thematic 'myth', of agricultural property values, along a developing commercial corridor, is another good example.
Another is that the existing improvements have no contributory value. This is where the appraiser says the old family homestead is economically obsolete and should be torn down because the land is worth more without it. It may even be true, but this often doesn’t play well for a jury.
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