Wednesday, February 25, 2009

Try an ounce of skepticism

As a young, inexperienced lawyer, I represented a fellow who had a bench warrant for failing to pay Child Support. The client told a truly moving tale of his attempts to find work, his current living situation, and his inability to pay.

I agreed to represent him for free, because such an injustice seemed to be happening. He had asked for a reduction in Child support, which appeared to be unreasonably denied. And it sure looked as if he could go to jail, based upon how the case was developing.

On the day of the hearing (as typical) I met with the prosecutor and the judge in chambers prior to court. The Judge indicated, based upon what he saw, that he was going to throw my client in jail for 90 days. Bond to be set at $20,000.

I begged, I cajoled, I explained how patently wrong and unfair that was. How this guy couldn’t put enough money together to buy a cup of coffee, let alone the outrageous amount the judge was thinking. How we are throwing a guy in jail, when he could be out looking for work, and perhaps coming up with the means to pay some support.

The judge ignored my pleas. He insisted he would be putting my client in jail. I remember being physically angry at the judge for refusing to listen.

After the meeting, I asked if my client had any resources to borrow the funds, or come up with something to prevent jail. He said he had nothing, and started to quietly cry.

“I don’t want to go to jail.”

We went through the hearing, and despite my best efforts, the Judge ordered my client to 90 days of jail; he could get out if he came up with $20,000. Might as well tell him to jump over the moon. They led him away in handcuffs as he just shook his head.

I started planning my appeal. I was furious at how the system had failed.

Later that day, I called the jail to contact my client regarding his options on appeal. He wasn’t there. He had come up with the money and been released. Total time in jail: 4 hours.

This was a large life lesson for me. Don’t always believe your client.

Sounds like a terrible thing, eh? Sounds like a breach of trust. Sounds as if one’s lawyer is somehow not part of the plan; not “on your side” if they don’t believe you. But here’s the thing—the only way we can do our job and do it most effectively is if we are FULLY informed. If my client had told me he had access to $20,000, I could have prevented even those four hours in jail. I could have possibly avoided court altogether.

It is counter-intuitive. You can tell the client wants you to like them; wants you to believe them. Wants you to be assured of their innocence; or--if not complete innocence--then 98% purity. You can see the fear that if we think they are guilty, we won’t work as hard. We won’t try and get the best deal for them. We will be spending our energy protecting other people we think are “more” innocent.

So we hear phrases like:

“I had never done this before…”
“If it wasn’t for my friends…”
“I always get a written agreement. But this time…”
“I only had two beers…maybe three…”

Yet if we don’t know the actual truth, we end up being less able to help the client. This conversation occurs too often to be humorous:

Judge: Has your client ever been convicted of a crime?
Me: [whispering to client] Any crimes?
Client: [whispering back] Nope.
Me: No, Your Honor.

Judge: What about this conviction two years ago for _____?
Client: [whispering to me] I didn’t think they would find out about it.

Find out? And these aren’t forgotten shoplifting cases as a teenager. I have represented clients who had spent years in prison and “forgot” about the conviction. Or didn’t think they would find out about it.

Again, if I am informed of it, I can actually turn it into a positive spin. How they had encountered the justice system before with no issues on bond, had previously appeared timely, etc. But by not knowing and then being “caught”—we are in a far worse position because we look like liars. (Good reason for that…)

It is not that clients want to lie to their own attorney. They just want to present the most favorable position. Put a positive “spin” on each fact. A more favorable nuance on each supposition.

“I only took one CD” turns into one CD and a bunch of memory cards.
“I forgot about the memory cards” turns into 2-3 trips back to the rack to have grabbed some more.
“They were only small items” turns into $2-400 worth of small items.

So one thing we learn as lawyers (at least the good ones) is to take our client’s story with a small cupful of salt. Perhaps we haven’t heard it all. We learn to start looking at the case with independent eyes. Look at it as to how others would see it, not as how our client would like us to see it.

The reason I bring this up, is that I have had the distinct unpleasure of dealing with two (2) different attorneys who passionately and whole-heartedly believed their client. Even when the facts demonstrated demonstrably otherwise. (I have changed the facts slightly to protect the innocent. But I can assure you, the essence is the same.)

In the first situation, the attorney insisted her client had never received the contract. Thus, there was no contract (in her mind) because her client insisted he had never received a copy. I pointed out how her client had transferred a $200,000 piece of property, exactly on the same terms as this “non-existent” contract.

Didn’t matter. Since she believed he never got it; she continued to argue he didn’t.

The problem was the documents didn’t support her. There were e-mails about the contract. There were signatures on the contract (including her client’s.) There was a closing on the contract whereby the Seller listed in the contract sold the property listed in the contract to the Buyer in the contract at the price listed in the contract. In the time outlined in the contract.

She believed her client and couldn’t see it. The court ruled against her. The Judge could see it; I could see it; the entire courtroom of lawyers could see it.

The second situation was another contract where the other side admitted her client signed the contract, but stated she didn’t read it because she believed it was for something else. We had the following conversation. (And after having cases where forgeries are claimed—such as will disputes—we obtain a general knowledge of how to compare signatures.)

Me: Here is the contract with your client’s signature.
Other Attorney: Mmmm…

Me: Here is an additional contract with your client’s signature.
Other Attorney: That’s not her signature.
Me: How do you know? It looks the same to me.
Other Attorney: Because she told me.
Me: But she is not here; how do you know?
Other Attorney: I believe her.

We then entered a fun-filled two minutes of:

Me: Here is an addendum to the contract with your client’s signature.
Other Attorney: That’s not her signature.

Me: Here is an additional clause with your client’s signature.
Other Attorney: That’s not her signature.

Me: Here is the application of credit with your client’s signature.
Other Attorney: That’s not her signature.

Me: Here is closing statement with your client’s signature.
Other Attorney: Wait, wait, wait, wait. THAT one is REALLY not her signature. See how the capital letters are different, and the “e” is not smashed, and the crossing on the “t” is not complete? THAT is not her signature.

I agreed. I do not think it is her signature either. Because the documents speak for themselves and show it to be so different from the other 8 signatures I have. I didn’t let on (the case may still go to trial) that the attorney’s own actions demonstrated how she was merely saying “Not her signature” by rote until we actually came across a signature that was not her client’s, and the attorney’s brain kicked in.

I’d make some dashedly clever comparison to growing up as a Christian, and believing what they taught me, but I don’t think I need to.

Tuesday, February 10, 2009

Evidence, Theism, Debates

Recently, The Barefoot Bum posted a blog:
“Theism and Evidence.” Jon also posted an entry on “Two Superb Performances from Atheists in Debate” mentioning how we are prone to argue evidence with Christian Apologists.

Both make very good points. Having been listening to Resurrection Debates recently, and knowing a thing or two about evidence, I thought to highlight a few particulars:

There are two factors about evidence—its definition and its “weight.”

Evidence is “testimony, writings, material objects or other things presented to the senses (such as a view of a scene) that are offered to prove the existence or non-existence of a fact.”

Notice it is comprised of two elements: both the fact (or non-existence of the fact) it is attempting to prove AND the piece of evidence itself. I often see confusion on this in theistic debates.

Imagine we are attempting to prove a woman wore a red shirt. So we call Witness Bob to the stand and he says, “The woman wore the red shirt.” The fact we are trying to prove is “the woman wore the red shirt;” the sensory item we are using is Witness Bob’s testimony.

The evidence is NOT “the woman wore the red shirt.” The evidence is “Bob testified, ‘the woman wore the red shirt.’” This is not merely nit-picking or quibbling over a definition without a distinction.

Part of what we look for, in testimony, is the credibility of the witness, their ability to observe, and their bias. What if Witness Bob is color-blind? Or was in a dark room? Or has an interest in proving the woman wore red? Understand--Witness Bob may be the most credible, honest, forthright individual who genuinely is attempting to testify to the truth, yet by being in a dark room, 100 yards away, and without his glasses on—this calls into the question how viable our “evidence” is, given these factors.

Gary Habermas often employs the same opening speech in which he states, “I am NOT going to do a number of things. I am NOT going to claim the Gospels are reliable. I am NOT going to rely upon scholars; rather I will point out if numerous scholars agree upon something it is because facts underlie their agreement.” (By the way, whenever someone starts off saying all the things they are not going to do, they inevitably fall into the trap of doing them. Dr. Habermas is no exception.)

Yet he then relies upon facts which are ONLY relevant evidence if the witness is reliable. In other words, using our example, he is saying, “I will NOT claim Witness Bob is reliable;”—but then he goes on to talk about how the woman’s shirt is red. If Witness Bob is not reliable—how can we even talk about the woman’s shirt color?

See, he wants to bifurcate the evidence between the sensory item and the fact we are attempting to prove. He does not want to talk about the sensory item, yet then assumes the fact we are attempting to prove!

He does the same thing with 1 Corinthians. The Corinthians received a letter from Paul, who said he received information from unknown persons about Jesus appearing to people after He died. Our evidence is, “Paul says, ‘______ told me, “Jesus appeared to certain people in a certain order.”’” The fact we are attempting to prove: Jesus appeared. The sensory item: “Paul says that they said.” (I should note Dr. Habermas indicates Paul received this from James and Peter. This doesn’t change the issue, the sensory item is still “I heard it from a friend who heard it from a friend.”

One of the things we look for in evidence is whether the witness ever said anything different. Did Witness Bob ever say the woman wore a different color? In Gal. 1:11-12, Paul says the gospel he received, he did not get from a man, but rather from direct revelation from God. Further, although I never see this addressed, one wonders if Paul was persecuting Christians—what was he persecuting them for if he didn’t even know what they believed? Are we seriously saying Paul did not know the claim Jesus was physically raised from the dead when he was going after Christians? I can’t see that helping the Christian apologist.

The first item is to understand evidence is a two-part concept. Both the sensory perception AND the fact it is attempting to establish. Removing one of those concepts from consideration means it is no longer evidence.

Secondly, we consider the “weight” of the evidence. Even though evidence may be admitted because it barely makes the cut, its “weight” may not bear up. It may not be considered very persuasive. An accused’s mother is allowed to testify the Defendant was with her, watching Seinfeld re-runs at the time of the crime. Her testimony (“I observed my son sitting next to me the whole time”) meets the criteria for evidence, but may not bear much weight. The fact the victim points out the Defendant, the Defendant’s fingerprints were on the gun, and the Defendant confessed all cause us to sympathetically question the strength of the mother’s memory as to which particular night the Defendant watched Seinfeld with her.

One frustrating aspect of treatment of evidence in these debates is the claim ALL evidence must be given the same weight. Poppycock.

I don’t particularly care for the phrase, “Extraordinary claims require extraordinary evidence” as the term “extraordinary” is too difficult to define. To a theist, resurrection is NOT extraordinary. And what is the difference between “extraordinary evidence” and “regular evidence”? I do appreciate the notion behind the phrase, that we require weightier evidence the more a claim is outside our normal observations.

Imagine I told you three things:

1) Yesterday, my brother had lunch with my Father;
2) Yesterday, my brother had lunch with President Obama;
3) Yesterday, my brother had lunch with Elvis Presley. (Lives in Santa Monica, as it turns out!)

As to the first claim, we would not require very much, or strong evidence. Sons eat with fathers all the time. This is within our normal experience. I suspect for most people, my word on the matter, in one sentence, would be more than sufficient.

As to the second claim, we would start to require more evidence. President Obama does eat lunch, so it is certainly feasible he had lunch with somebody yesterday. And we can conceptualize a situation where more proof would be sufficient. Perhaps my showing my brother works in the White House, or my brother’s ticket to a fund-raising event attended by Pres. Obama.

As to the third claim, since Elvis is believed to be dead, and proof that he is still alive would have a HUGE impact on the next day’s newspaper headlines, we would require quite a bit more evidence. My brother’s lunch receipt signed by “Elvis” would not have enough weight to carry the day. Our testimony is certainly not enough. Even my brother’s insistence, to the point of exasperation, that he really, really, really, really saw Elvis is not enough. A picture with Elvis (impersonator?) would not be enough.

As claims go farther and farther from our normal observation, the more and weightier evidence we require to substantiate them. It is absolutely, patently ridiculous to take umbrage you don’t believe my brother had lunch with Elvis by claiming, “Well! Then you can’t even believe my brother had lunch with my father, since it is much the same thing.”

Wrong. Caesars battled wars. Believing a man came back from the dead after three days is not “the same.” It is time to bury the comparisons to Alexander the Great, Socrates and Julius Caesar every time the apologist says, “We have A LOT more information about Jesus than these people, yet you don’t accept the claims about Jesus.”

Great. I have a LOT more information about my brother eating with Elvis—a signed Lunch receipt and a picture—than I have about my brother eating with my Father. Surely you accept both claims as true? No? Why not?

Because we “weigh” evidence in light of the claims being made! Claims of Socrates philosophizing (people philosophize), Alexander the Great overtaking countries (it happens) and Julius Caesar crossing the Rubicon (within our normal observation) pale in comparison to supernatural, miraculous resurrections.

The idea we must give the same “weight” to evidence describing normal events, as evidence describing one-time supernatural events is not born out in our normal lives.

Unless you think, “my brother ate lunch with my father” must be given the same weight as “my brother ate lunch with Elvis.”

In which case, I have an autograph to sell you that is invaluable…a 2009 Elvis.

Friday, February 06, 2009

Arguing with Christian Apologists

I’ve been off, debating Early Church writings on
Vinny’s blog. Nothing exciting; the same arguments we see time and again.

One of the frustrating aspects is when Christian apologists take only the positive from a document, or couch the statement is such a carefully worded way so as to appear if this was a great point, but in fact there are numerous problems.

One of the common items we see is a statement along the lines of Papias mentioned the Gospels of Mark and Matthew.”

This is technically true. Papias did mention two gospels—one by Mark and one by Matthew. But the impression given is that these are the same Gospels we have today. Are they?

A few points to ponder which are also in the few writings we have on Papias:

1. That Mark’s gospel is “not in order” when, in fact, it IS in order.
2. That Matthew’s gospel was in Hebrew, whereas our Gospel of Matthew was originally written in Greek.
3. There is a question whether Papias was a disciple of John the Disciple or another John (the Presbyter), yet Papias does not list any Gospel by John.
4. Papias does not list any gospel by Luke, nor indicate any familiarity with Luke.
5. Papias lists a saying of Christ which he claims to have heard from John that is not in a canonical Gospel. It is from 2 Baruch.
6. Papias gives an account of Judas’ death that is different than Matthew’s and different from Luke’s.
7. Eusebius did not find Papias reliable, primarily because of Papias’ doctrinal belief in a Millennium.

I think it important to emphasize that last point. People’s writings were rejected NOT because of the historical accuracy, NOT because of the reliability of the writing, NOT because of the deterioration of the copies—they were rejected because the person held the “wrong” doctrine!

Imagine that! If a stenographer followed Jesus and recorded his every word, yet ended up Gnostic, his/her writings would be eliminated from consideration for their Gnosticism. Not their accuracy.

The Christian apologist is attempting to use documents, claiming they are historically accurate, when the people of the time were not trying to be historically accurate, had no goal of being historically accurate, and were not preserving documents based on historical accuracy. Theological “correctness” is what determined a documents viability—not its historical accuracy.

Anyway…what does the Christian apologist do when these points are brought up? Usually two responses:

1) Hand-waving: “Oh, those points aren’t important. What IS important is that Papias mentioned any gospels at all.”

2) Ad hoc explanations: “Oh, the Gospel of Matthew was originally written in Hebrew, and then translated to Greek. Papias had the Hebrew Copy.” (We would call it “Matthew 1.0” in the computer age.)

The problem with hand-waving is what the Christian embraces; they would NEVER allow a skeptic or a person from another religion. Imagine if we said, “Papias doesn’t mention Luke, so it wasn’t written then.” There would be cries of “Argument from Silence” and “He mentions other Gospels” and “there is no demonstration he would have known Luke to mention it.”

If all we want to do is pick-and-choose the helpful bits, the Christian apologist would cry “foul.” Yet this is exactly what they do.

The problem with ad hoc explanations is that there is no proof (where is a copy of this “Hebrew Matthew”?) and only create further problems. How is it Hebrew Matthew was translated to Greek Matthew in many places the exact same wording as Mark?

Of course, when a Christian apologist has a Christian congregation, these problems are easily resolved. They are never confronted with them from a friendly audience.

When I prepare for a case, I have to look at each fact in the case from three standpoints:

1) Does this help my client?
2) Does this help the other side?
3) What will a neutral party likely determine?

If I had the Christian apologist sitting across my desk, and they brought out Papias, I would be questioning them on these very points. What do I say when the other side brings them out? I cannot ignore them, because if I do, my opponent will surely demonstrate these problems. The jury will not only hear them, but wonder why I ignored them.

What would a neutral party think? Would they be convinced of a (non-existent) Hebrews Matthew we cannot prove, but conveniently “helps” our case? Would they think Mark is not in order? Would they think the death of Judas contradicts Matthew and Luke?

Would they be impressed that these were the same Gospels as what we have today? Or would they be more hesitant to make such a conclusion.

I tire of the failure to recognize the other side has legitimate points. Of Christian apologists who dogmatically state conclusions and then are shocked when we skeptics don’t roll over and simply agree. Their congregation of 1000 did last Sunday—who are we to dare question them? Dare to actually claim knowledge of their church father’s writings.

In my practice I would be lambasted, paupered and then disbarred for continually being unprepared if I treated cases in such a fashion. We HAVE to acknowledge counter-points, because they will be presented to our neutral party who is making the determination. To ignore them, or act as if they don’t exist would be malpractice.

I don’t care if the Christian apologist agrees or disagrees with me. I don’t care if, after reviewing arguments from both positions, they are convinced of their own. This is humanity. What I find stunning is the inability to even recognize the counter-points as having any legitimacy, and the constant brush-off of such points as those of heretics, heathens and hyper-skeptics.

I would dearly, dearly love to take such a Christian apologist, with their approach, into a court of law. They would find such tactics a catastrophic failure.