NBC News anchor Brian Williams’ purported false memories of being shot down in a helicopter with his news crew more than a decade ago in Iraq is being spoken of everywhere in American news this week. Williams, to the shock of many, did not respond to the revelation that his story was untrue with contrition and admission of the lie, nor did he seek true forgiveness for what was, to many, a failed attempt at self aggrandizement. Rather, Williams’ response was the much more surreal and perhaps less believable, “I don’t know how I got this wrong”.
Most people’s response was an immediate, “How you got it wrong? . . . You lied and got caught!” However, trial lawyers know a different explanation. We have learned that people perceive events differently and that witnesses may honestly relay to a court testimony of the events on a given day with polar opposite descriptions that bear not the slightest similarity to the observations of one witness to the other. Remote events are even trickier. Brian Williams was on that helicopter in Iraq about 12 years ago. When he first told the story of being on the downed helicopter he most likely knew his story was a lie or an exaggeration. He most likely told it to give himself so “street cred” as a true journalist and not just a talking head.
Having said that, his recent lament as to he did get this wrong is understandable. Long term memory is tricky. Memory is derived from viewing an event and then replaying the event in one’s mind until the mind stores it away. In the process of rehearsing the event in one’s mind (not my term but the term used by memory experts) there is often distortion. The distortion can be small and revolve around detail or can turn into a tall tale. Frequently the tall tale is the result of embellishments made innocently perhaps or purposely to make a point. In the repeating of the tall tale the “liar” forgets the lie, like that spanking that you vividly remember that dad delivered or the mean thing that Aunt Molly said that the entire family tells you never happened.
The point for lawyers and particularly for divorce lawyers is that recollections are tricky things. Over time perception, prejudice, experience and self protection may cause our recollection of remote events to morph into unreality. When a witness tells you their story it needs to be laid up against the recollections of the spouses as well as collateral sources until the real story emerges. Too frequently a lawyer pursues without question a set of facts only to find that the recollection of a critical event is skewed and that documents undermine the assertion. It is often our job to show the other side that their recollections are faulty.
Many of the issues in divorce litigation are driven by history. Child custody decisions are often driven by the historical involvement of the parents with the child. Property distribution decisions are affected by the historical contribution of the parties to the acquisition and preservation of assets. Frequently, the parties agree on the salient facts but sometimes the assertions are askew.
It is plausible that everybody believes their rendition of the facts. Supporting the facts with documentary and collateral evidence is hallmark of good advocacy. Brian Williams would have been well served if his reality check had come sooner. That “Perry Mason” moment in the courtroom when your opponent’s recollection of events crumbles under the weight of the objective evidence only occurs when you bother to take the time to build your case on real facts backed by supporting proofs. “He said she said” leaves the judge with a ponderable dilemma. “He said versus she and the rest of the world said” puts you in a far more enviable position, as Mr. Williams has come too painfully to learn by first hand experience.