February 2014 Idea
By Aida Alaka, Washburn University School of Law
In the January Idea of the Month, Sophie Sparrow noted that legal research and factual investigation are among the top skills lawyers need to be successful. While many students graduate without enough upper-level experience in either legal research or factual investigation, most do understand what “law” is. Surprisingly, however, many upper-level students have difficulty determining what “facts” are. They can easily confuse inference, conclusion, characterization, and speculation with fact. A very simple exercise, which I adapted from a National Institute for Trial Advocacy exercise I observed, can help students identify the differences. Although I have used this exercise in Legal Writing and Pretrial Advocacy, it can be used in any course in which a class goal is to focus students on factual details.
In preparation for their initial client interviews in Pretrial Advocacy, I asked students to each take a turn articulating one fact about me. I assured them that I was not easily offended and invited them to use their powers of observation. The first student offered as “fact” that I “have high standards.” The second posited that I am “passionate about the class,” a third observed that I have “darker hair,” another that I am “short-sighted” and so on. After each student, I asked the class whether the student had provided a fact or something else. After discussion, students correctly concluded that these were not facts but conclusions, comparisons, speculation, and characterizations. It took several other mistakes before we started getting “just the facts,” such as what I was wearing.
When faced with non-facts parading as facts, one might ask students “How do you know?” or “What do you base that on?” For example, when asked, the student who had concluded that I was “short sighted” explained that his conclusion was based on the fact that I was wearing glasses and that I had had difficulty reading the clock in the room. When probed further, the student also admitted that not all people who wear glasses are short sighted and all of the students experienced the “aha!” moment of seeing how easily one can confuse a fact – I was wearing glasses – with a conclusion or inference – I am short-sighted. Additionally, students also learn to avoid assumptions based on the absence of certain facts (if an individual is not wearing glasses, that person is not short-sighted) and to focus instead on the facts themselves.
This simple exercise can also highlight the need to allow facts to speak for themselves or to avoid adopting the opinions or conclusions of others. For example, students correctly noted that the “fact” that I have “darker hair” was an opinion based on a comparison with an unknown actor. When probed, students realized they had to take a leap of faith to assume that the statement conveyed a fact – that I had dark hair – but even then, they did not know what that actually meant: if they did not know me, the possibility existed that I had brown, black, or dark blond hair.
Practicing lawyers know that success lies in the details. To be truly “practice-ready,” students need to identify “just the facts.”