When Kellyanne Conway used the phrase “alternative facts” on Sunday to describe Press Secretary Sean Spicer’s counter-portrayal of the size of President Trump’s inauguration crowds, her comments were greeted derisively by the media and much of the public. The term seemed Orwellian in its efforts to turn falsehoods into truth. Twitter started lighting up with descriptions of made-up events now described as “alternative facts.”
But lawyers deal with alternative facts all the time. A personal injury lawsuit may turn on the question whether the traffic light was red or green, with each side passionately trying to establish the color that serves their interests. A judge ruling on a motion for summary judgment must decide whether there is a triable issue of fact, meaning that to avoid summary judgment, the evidence presented on the motion must show genuine contradictions between the facts presented by one side versus those presented by the other. And every day we give juries the task of determining which side’s version of the facts is more likely to be true, or whether the truth lies somewhere in between the presentations of both sides.
Often the assertion of two different versions of the truth means that one side or the other is deliberately lying. But not necessarily. The parties may present two contradictory stories because each side genuinely perceived the events differently. Or there may be basic agreement on some facts, while each side emphasizes pieces of evidence that favor the conclusion they want the fact-finder to reach. Lawyers are only doing their job when they selectively present the evidence that favors their side, leaving it to the opposition to highlight the facts that are favorable to them.
In the case of Sean Spicer, I’m not going to make a judgment about whether his version of the facts reflected reality better than other reports. Shame on Sean Spicer if he is deliberately lying, but it is only fair to point out that at least some of what is going on here, such as Spicer pointing out that the ground cover may have made the crowds look smaller, while others assert that the same covers were used during prior inaugurations, is not that different from what trial lawyers do every day. Similarly, I’m not defending Kellyanne Conway for using the phrase “alternative facts,” which does seem to suggest that she is playing fast and loose with the truth. And shame on Kellyanne Conway if she was suggesting that made-up facts are just as valid as actual facts. But if all she was doing is introducing counter-evidence at variance with other reports, again that is similar to what lawyers do. One hopes the public is smart enough, as juries usually are, to sift through all the conflicting evidence and figure out what is really going on.