Perspectives on Evidence

I stress that one of the great advantages of being a lawyer is the comfort of dissecting any set of facts in retrospect. There are lawyers that make careers in the counselor or advisor role. Those face many prospective analyses and are called upon for many "what if" questions. Even for litigators, there are times in trial when a lawyer must make a snap decision on tactics or processes. But, for litigators, much of their analysis is of past events. They may color them carefully (staying within the lines), or they may paint them in the abstract a la Picasso or Pollack.

Psychology Today explains that

"a Monday morning quarterback (MMQB) is a person who criticizes, passes judgment, and offers hindsight solutions to problems. They are very easy to find today . . ."

The ability to re-examine and critique lies in us all. And, it turns out we all have some tendency to re-examine our own actions in retrospect. There is a "hindsight bias," that urges us to create "stories that make sense based on the information we have." We tend to "promote a positive view of ourselves" in these retrospections, and in the process, we may preclude ourselves "from learning from experiences, or taking a deeper dive into the forces at hand, and coming up with a more accurate analysis of what’s transpired." 

You see, the lawyer is allowed to bring the focus of time and the singularity of perspective to events and to explain them similarly positively, but "promot(ing) a positive view of" the client. In what explanation or from what perspective does the client look the most profound, the least at fault, the most aggrieved? You see, as Don Henley presciently espoused in The End of the Innocence (Geffen, 1989), "The lawyers clean up all details." 

I thought of the concept recently when a football player made the news in Miami. It is imperative that we remember the news reports factual allegations. We must remember that the actual facts may or may not be accurately described in such accounts. We employ juries to sort out the differences in perceptions and accounts. And, there are virtually always two (or more) sides to any story. Juries, like litigators, get to view everything in retrospect (MMQB). Thus, as there has been no adjudication of facts, what this example provides are allegations and perspectives. 

The allegation by an airline is that the football player was removed from a flight in Miami. Local 10 News reports that this was a 09:30 flight from Miami to Los Angeles. Forbes reports that the airline said he "failed to follow instructions from the flight crew members." The flight crew expressed "concern() about the state of his health." They allege that he was unresponsive when instructed to buckle his seat belt, or that he "refused." The crew described that he “appeared to be coming in and out of consciousness.” Thus, the plane returned to the gate. The Associated Press reports that emergency medical personnel were summoned.  

The football player then graciously apologized for the waste of everyone's time, acknowledged he had caused a disruption, and quietly deplaned as requested. Just kidding. He "allegedly refused to leave the flight when asked to do so by the crew." Instead, all of the passengers had to deplane, and "after it was emptied of all passengers and police stepped in," he then graciously exited the plane. There is no mention in the Forbes article of his apologizing to any of the passengers whose day was interrupted. Local 10 News quoted a passenger “The whole ordeal delayed us two and a half hours.” An Associated Press article alleges there were "grumblings" from some passengers. 

There were some reports of the football player issuing some social media comments about his disdain for the way he was treated. It appears he may have viewed the airline's decisions and actions as unnecessary or untoward. Soon, his lawyer provided an explanation, according to Forbes. He says that the footballer "fell asleep with his blanket over his head, which is his normal practice for long flights." The attorney alleges that when the footballer eventually wakened and learned that the flight was returning to the gate due to the perception that he had ignored instructions, then the footballer offered to buckle up. Interestingly, there is no mention in the news of actually buckling up.  

The lawyer "blamed the incident on 'an overzealous flight attendant.'" He asserts that "Sleeping on a plane should not be a cause for removal from a flight.” While this provides a perspective, there is little in the Forbes article to dispute that the crew struggled to awaken the passenger, that medical care was summoned, or that they had genuine concerns for the passenger's safety.  

So, the retrospect in this instance appears to be largely on the player's public image. The public image might well have been preserved by politely departing the aircraft when instructed? It is possible that delaying all of the passengers for hours may not have been the best way to minimize attention in such a situation. Remediation might have been accomplished early in the experience. In many years of flying, I can think of only one time that I saw people with blankets over their heads for a mid-morning takeoff. As I recall, that was a Vegas departure. 

But, what would be the perspective had the flight attendants ignored their concerns of consciousness, merely buckled the passenger up in his sleep, and taken off? Might that have been the better course? Imagine the plane hypothetically landing in Los Angeles with a comatose passenger, and the questions the attorney might have then asked on Monday morning (MMQB).

 

• Isn't it true that my client was unresponsive and would not awaken?
• Isn't it true that you and other crew members expressed concern for his health?
• And, you chose to buckle-up a non-responsive passenger despite those concerns and proceed with a 4-hour flight without regard for his condition?
• There was no physician or other medical expert known to be on board was there?
• Let's be clear, there was a blanket draped over the passenger's head, was there not?
• You would agree with me that draping a blanket over one's head at 9:30 in the morning may be of some concern?
• And, if you had returned to the gate and summoned medical help, it is possible my client would be alive today, is it not?

 

 

You see, there is no telling in-the-moment. It is possible the player has boarded a flight and is being recalcitrant (ignoring or disregarding). In my many miles of flying, I have seen many a passenger start a mask argument, but not one a seatbelt argument. It seems reasonably unlikely someone would petulantly refuse to buckle up. That said, it is possible.  

It is also, in that moment, possible that a medical condition exists and requires attention. There may be a difference between "I will now put it on," and "I'm sorry, I have buckled it now." It is helpful to have someone voice their well being ("I'm fine now, thank you"). But, I have seen some people with medical challenges that they could not recognize; a good friend once drove herself to the hospital for a headache and had to be told by the admission nurse that she was having a stroke (which she initially vehemently protested). It is possible that there are facts in that moment that you simply do not know and may struggle to personally ascertain. 

If only the lawyer had been there in person to have made the necessary decisions. If only the lawyer were there to make personal, first-hand, observations. But, like the jury, the MMQB instead views all in retrospect. Certainly with the help of the lawyer (artist) painting the picture, but in retrospect.  

In the end, it is fair to say that there were some diverse perceptions of the man with a blanket over his head that morning. There may be repercussions from the decision to deplane this player, but there might have been some from taking off with an ill and unresponsive passenger. The fact is that in any circumstance the decisions in the moment may not be viewed as the best in retrospect. This might apply to the blanket over the head or the return to the gate. This might apply to the refusal to deplane or to the deplaning of all passengers.  

Before anyone becomes too accusatory as to whether someone involved was either recalcitrant or overzealous, perhaps we first admit that none of us was there. Those who were there made their decisions (not getting off the plane, returning to the gate). Those decisions were in the moment and may look different on Monday morning.  

What is relevant, persuasive, or compelling? That is all in the evidence, the substance and delivery of the testimony, and in the eyes of the finder of fact, if there is a trial. In the event that there are no legal proceedings, that leaves the fact-finding to the public, and the perceptions and conclusions will come from the "court of public opinion." In the end, proceedings or not, there will likely be no "right" or "wrong." There will be merely second-guessing and perhaps recriminations. 

In the end, the better part of valor might have been a sincere apology to the many people inconvenienced by forgetting or refusing to simply buckle up. But, it comes down to perceptions and decisions in the moment, and how they are characterized or believed by the MMQB. It is analysis and perspective that the aspiring lawyer must grasp and master. 

By Judge David Langham

Courtesy of Florida Workers' Comp