The term “alternative facts” also known as “alternate facts” has become a regular part of news reports and political shows on TV since the Presidential Inauguration last month. While many have made jokes about the use of alternative facts, and have poked fun at the proponents of these alternative facts, there are, in fact, safeguards against the use of these in real life trials.
Alternative facts include both claims that a certain fact is true when in fact it is not, and is contradicted by real evidence, as well as when one takes a fact and argues that the fact has more than one meaning or interpretation, even if the meaning or interpretation is completely illogical. The most obvious example came when the Trump Administration alleged that the audience at President Trump’s Inauguration was the biggest of all time despite clear evidence to the contrary from multiple sources including The United States Park Service which posted pictures comparing the crowd at President Obama’s Inauguration to that at President Trump’s Inauguration. One of the President’s advisors, Kellyanne Conway even stated that certain things she was saying on television were alternate facts.
As a trial lawyer, I am concerned that the trend and use of alternative facts by our government, and as seen on TV on almost a daily basis will cause some parties to believe that they can use alternative facts in the litigation of a case.
Fortunately, there are safeguards built into the court system to limit and hopefully prevent this occurrence. First, in any civil litigation, the parties are allowed to take discovery which includes asking questions under oath in deposition and, in writing, through Interrogatories, requesting and obtaining documents and tangible evidence relating to the issues in the case, and the ability to do independent research and study relating to the facts of a case. Once this has occurred, the proponent of any alleged alternative facts can be questioned, under oath, and required to respond under penalties of perjury to questions relating to the creation and or use of these alternative facts.
The proponent of the alternative facts cannot simply say that he or she is not taking questions from the attorney as some of the government officials have done with certain news sources, and will have to answer the questions in a live setting so that one can also observe the body language of the proponent. Further, at the end of the day, if a full trial is had, the proponent of the alternative facts must present them either to a judge or jury who will then hear from other witnesses and their understanding of the actual facts and who will also be able to point out why the alternative facts proposed are not logical, true, or in some cases relevant. These additional witnesses can further give testimony, under oath, as to why the proponent may have a motive to use alternative facts rather than the truth.
This system of checks and balances built into our court system is intended to avoid the use of alternative facts in litigation, and also has a very strong penalty for those who are caught using alternative facts which may be viewed by the court as outright lies and therefore perjury.
One does not face potential perjury simply by making a statement at a news conference, in a tweet, or to an interviewer. However, the penalty of perjury includes jail time and should be serious enough to require litigants to avoid the use of alternative facts.
Steven T. Blomberg