Over on my other blog, Is Yoga Legal, we have been discussing
memory, specifically its fallibility. This post is a modification of the third post focused on what to do with the knowledge that our memory is fallible.
Memories define our stories about our lives; they define who we
are. Unfortunately, they are notoriously unreliable. The legal profession is one of stories. And when it comes to
stories, family law is at the top of the list. Everyone has their own
story in family law, and usually the two parties have stories that drastically
differ. Both sides tell their story. Most of the time, each side assumes the
other one is lying, and the neutral people (evaluators, judges, child’s representative)
assume they are both lying.
But what if both sides are telling the “truth,” albeit their own
truth? If we can implant false memories in others, surely we can implant them in ourselves to strengthen our case when our emotions are flared. What if their memories are exactly what they are telling the court? How
are we, as professionals, including neutrals and advocates, able to discern
these stories and find a way forward in the case? Is the system as it is
currently set up, in an adversarial fashion, able to understand this?
We are told from our first moments in law school (or in forensic training of any type) in places where
the adversarial system predominates, that the adversarial model's greatest strength is its ability
to get at truth. We keep out evidence that we deem unreliable, we allow both
sides to present their story and question the other side’s story, and we ask a
neutral observer (or observers in the case of a jury) to determine who is
telling the truth and who should win. But the entire system relies on a belief
that truth can be discerned. Moreover, it assumes people lie. That second assumption does not bode well for people who want a feeling of justice being served when they believe they are telling the truth.
More and more brain science is discovering that people do not
necessarily lie; people are deluded by their brains. So, if we do not believe
them, it does not mean they understand and move on. It means that they feel
that justice was not done, and according to their own memories, they are right,
even if external circumstances may not support their internal memories.
Thus, as professionals, do we have an obligation to inform one
party that the other party may not be lying? Do lawyers have an obligation to
question their own client’s views of the truth? Does that border on unethical?
Should we be concerned about what our ethical rules require if it does? Do
judicial rulings need to focus less on which side is telling the truth, which
side is more believable, and focus more on ensuring that both parties feel
heard and believed? As we discussed before, parties often just want to be
heard, and they want a place to vent their emotions. Is our attempt to find
truth among these varied accounts in vain?
Perhaps we cannot change the system overnight, but we can change
how we as professionals respond to the growing scientific evidence that
memories are fallible. As advocacy professionals, we can understand that
getting caught up in our own client’s story as though it were gospel may not be
the best way to handle a case. As neutral professionals, we can recognize that
just because the stories do not synthesize, it may not be true that either side
is lying, at least not intentionally so. As colleagues working to resolve these
difficult cases, we can discuss cases and situations with more perspective,
understanding that there may be more to the story than we first perceive. Most
importantly, we must be willing to let go of our own version of the family law
story. We must be willing to look at moving forward in an entirely new light.
It would be great if we could help the parties recognize that
they might not be each trying to harm the other, but might just remember facts
differently. But sometimes, the stories are too ingrained. (Here is a link to a great article on the topic). But the shift is coming. In the past, this information was mostly held by the psychological community, but today, it is in our headline stories. People may be more willing to hear it as a critical mass begins to understand just how malleable our brains really are.
Of course, we still have to resolve these cases, and that means that
we have to find some semblance of truth in what really happened in the past.
But more importantly, we have to determine what is going to happen going
forward. The fact that parties are before a court means they are in a period of
transition. This is an opportunity to create new memories and new stories. If
we as professionals model the compassion and understanding that everyone
remembers the world in their own way, we can ensure that the parties are heard,
have an opportunity to vent, but also have an opportunity to heal and move
forward.
© 2011 Rebecca Stahl, all rights reserved
