“Truth isn’t truth.” So said Rudy Giuliani when explaining why his client, the president, should avoid participating in an interview with Special Counsel Robert Mueller. He rejected the argument that his client didn’t have to worry about this even though he would tell the truth because Mr. Mueller may have a different “version of the truth.” This statement is reminiscent of White House advisor Kellyanne Conway’s statement about “alternative facts.”
While it is easy to mock Mr. Giuliani’s statement, read in context, it contains a nugget of truth that lawyers and other dispute resolution professionals should appreciate. Even so, his argument is deeply flawed. See if you can spot all the errors in the following logic.
Mr. Giuliani gave the example that Mssrs. Trump and Comey may each have a different account of whether Mr. Trump talked about Michael Flynn in a conversation with Mr. Comey. He essentially argued that if Mssrs. Trump and Comey disagree about this, there is no truth.
Mr. Giuliani assumed that there was no other relevant evidence. While that might be true in some situations, Mr. Comey reportedly wrote a contemporaneous memo and discussed the events with others at the time. There may be other probative evidence.
Even without additional evidence about the conversation, Mssrs. Trump and Comey have particular reputations for truthfulness (or lack thereof), which can help people determine the truth.
In addition, we can evaluate their interests in providing one account or the other, which may help determine the truth.
There may be additional ways to determine what did or did not happen in the conversation at issue.
Note that this refers to proving what happened, not what actually happened in fact. Regardless of whatever proof may be available and persuasive, the two men either did or did not in fact discuss Mr. Flynn in their conversation.
The Nugget of Truth
When people try a case in court, the opposing parties often provide conflicting versions of the truth based on the same evidence. Plaintiffs present certain evidence and defendants may present additional evidence to support their theory. This may have been what Ms. Conway meant when she referred to “alternative facts.”
We often can’t “know” things with certainty. For example, even in criminal cases, jurors may convict if there is no reasonable doubt even though there still may be some doubt. In other cases, we accept decisions based on lower standards of proof.
Scientific knowledge is based on evidence where there is less than a 5% (or even 1%) that the findings would occur by chance. Again, scientists accept data as persuasive (but not conclusive) even if there is some probability that it was the result of chance.
In the mediation context, mediators generally have a default mindset that people can have their conflicting Roshomon truths about the same events.
So, in our field, we generally accept that there may not be a single unequivocal truth.
The problem arises, however, if Mr. Trump lied about things like referring to Mr. Flynn in the conversation with Mr. Comey and expects people to believe that his lies are true.