• Brendan

The Absence of Evidence and Mindful Communication

An old aphorism states: "absence of evidence is not evidence of absence." What this notion captures is the distinction between evidence that a thing is actually absent and the absence of evidence regarding that thing. In the law, we deal with evidence a fair bit. Speaking very broadly, this evidence in a divorce case (like any case, really) first has to be relevant in order to be admissible. Something is relevant, legally, when it has any tendency to make a fact that is important to the determination at issue more or less probable than it would be without the evidence.

However, after establishing that evidence is relevant, the inquiry does not stop there. Even relevant evidence can be excluded if its' probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or would be overly wasteful of time, would be unduly delaying, or would be needlessly cumulative. Beyond these very general parameters, there are dozens of other rules of evidence regarding statements by people and the notion of "hearsay." It is all very intricate stuff that many lawyers (and even judges) do not have a very good handle on.

In the end, what these rules are really trying to do is insure that evidence will be legally relevant to what is going on and that it will be reliable as a matter of law. For instance, that conversation where you overheard Aunt Jenny relay to Uncle Joe what Cousin Mary advised her she was told by the mailman who spoke to your ex-wife's neighbor probably has some reliability problems. Similarly, evidence that your soon-to-be ex-spouse once danced naked in the fountain at college on Homecoming Weekend approximately 26 years ago probably will not be relevant in your divorce case. Though there are ways that it could be.

Many times, we divorce lawyers are bombarded with emails and texts by our clients. To the Client, much of this "evidence" is very relevant. They know their spouse and have lived with them for decades. The lens through which they assess the statement, email, or text is necessarily going to be different from mine (or any lawyer's). I might think that there is no real or relevant evidence in what I am being presented. I might then determine (erroneously) that this justifies my discounting what I am being asked to accept. In doing this, I may be attempting to be logical or lawyerly - but I am making a larger non-legal mistake to the extent I do that. I am missing the really relevant non-legal thing that is being presented to me.

To understand this a little better, let us leave the realm of the concrete and legal and turn to what really matters: our lives as we live them in divorce or after it. I have written here previously about the nature of our interpersonal communication with our ex-spouses or partners. We have touched on ambiguity and uncertainty and the need for greater attention in communication. And really, the absence of evidence "issue" is an important one for us as social creatures - whether in a divorce, in a marriage, at work, or with friends.

If we succumb to the faulty notion that we are strictly rational and logical beings, we will live our lives like lawyers and judges in a courtroom and attempt to weigh matters only as described above. This is a bad thing, by my lights. We are not always rational. We do not at all times (or even most) act and speak in the world by strict reliance on our logical faculties. Rather, our logical faculties serve our sentiments to a fair degree. This is really just understanding Hume's notion that reason is a slave of the passion.

If we approach our dealings with our fellow humans like we are in a courtroom and according to the rules of evidence, we would weigh communicative relevance, reliability and probative value with an insufficient appreciation for the deep tides and undercurrents that move us and that infuse our words and others' words. Stated differently, when our clients are conveying to us the "real" relevance of that material that we do not, as lawyers, think is relevant -- our antennae should nonetheless go up. Because this presents to us something we should pay attention to despite the fact the material won't matter in Court. It is, I think, a signal, to explore more deeply if we want to truly understand and assist our client beyond mere legal representation.

As anyone who has ever spoken with another human will know, communication is actually quite hard. We hear and read words or view images and we process them. We interpret them. We engage with them. We do so literally through certain biological means. But those words and images also are sorted and inflected both with all of the other words and images we have ever heard or seen and all of our experiences prior to hearing or seeing the words or images.

When I hear from my colleague in the office next to mine: "can we talk?" - I will have a response to that on many levels, including a physical one, if I am mindful of my breathing and heart rate. When those same exact words are delivered in the same exact tone of voice from a child, parent or someone close to me personally - my reaction may be very different. I may tense up or clench. I may feel fear or dread or anxiety. My breathing may become shallow or rapid.

So much of our communication with those close to us is influenced by so many factors that are invisible to us without mindful attention. With a spouse or ex-spouse in particular, we have presumably accumulated years of conversations. Years of interpreting and engaging with their words. Many of those words, either from us to them or vice versa, were not always kind words. We all can recall a very cutting comment we received or delivered years ago. Such things remain with us. And for most of us, over time, we developed certain stock reactions and communicative patterns with our spouse. We adopted verbal techniques and scripts that became ingrained features of our discourse with them.

It is my sense that maintaining positive communication and interaction post-divorce (or in any setting really) requires us to dismantle and unpack many of these adaptations that built up over time and to rewire our patterns in more thoughtful ways. And it further requires us to understand that in our communication, our not hearing or seeing some "thing" is not the same as the "thing" not being there. The absence of evidence issue. We are very quick to make interpretive assumptions in our conversations and interactions. How easily do go from 0-60 when dealing with someone, like a former spouse or opposing counsel, with whom we have or have had a conflicted relationship at times?

How readily do we get our hackles up when a text or email comes in and we read it one way as opposed to another? How different would the words feel if they bore an exclamation point or an emoji?

When our clients relay to us and interpret their spouse's words or actions, we sometimes think they are being overly emotional, making too much of things, interpreting the words or acts incorrectly, making mountains out of molehills, etc. Perhaps they are on an objective level (to the extent one exists). But divorce is not objective. When we think about what our ex-spouse or friend or colleague says or does, we also often think the same things. But life is not objective, in many ways.

One of the primary shortcomings of many of us who are lawyers is our inability to recognize and work sensitively with our client's emotional material. This also happens to be a shortcoming we all have - but in the lawyer it is magnified by the nature of our legal education and training and the rules under which we perform our jobs in the legal system.

I have attempted, over time and very imperfectly, to try and be more mindful of how I engage with Vanessa and to attempt being more aware of how I am engaging with what she says or does. I attempt to do this with clients as well. So much of what drives the truly bad part of divorce (as a lawyer or participant) is this raw material that we do not engage with well. The emotional, the unconscious, the deeply stored - the heavy stuff. The wounds and scars. Others and our own. We should become more attuned to this material and the signals it sends through our communication.

As we approach the weekend, let us all think about these things a little more than we usually do. As an exercise: when you talk or text over the next few days - take a moment to feel your body tensing or relaxing, your jaw clenching or slacking, and note how your breathing alters itself. When you communicate, be thoughtful in what you say and how you say it - thinking consciously to yourself that it will be interpreted by another person just as human as you. Also be compassionate with what you hear and read yourself - recognizing consciously that it came from another person just as human as you. And understand fully that what you think is going on in communication is only the tip of an iceberg.

You might think that I am making an awfully big deal about something that is very simple. And I am. Sometimes the things we think are the simplest are in fact the most complex. But try it out. Pay attention and really listen and ask to be heard and paid attention to (nicely, of course). Talk can be cheap. But it is worth a lot more than we think.

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