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VOL. 38 | NO. 29 | Friday, July 18, 2014

Creative bull behind lawyer’s elephant analogy

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Several years ago, a Mr. B. testified as an expert witness in a plane crash case. The lawyer cross-examining him worked awfully hard, providing some entertainment along the way.

The issue was whether the pilot should have been warned of bad weather seen earlier by six FAA employees.

The lawyer announced: “I am going to read to you a poem called ‘The Blind Men and the Elephant’ by John Godfrey Saxe. He then read the entire poem, in which six blind men feel different parts of an elephant’s anatomy and conclude that the elephant “is like a” wall (side), spear (tusk), tree (leg), snake (trunk), fan (ear) and rope (tail).

The following is from the trial transcript, beginning with the last stanza:

And so these men of Indostan

Disputed loud and long,

Each in his own opinion

Exceeding stiff and strong,

Though each was partly in the right

And all were in the wrong!

Q. Would you not agree that those six men in the tower who did not see the hazardous condition were like the six blind men of Indostan?

A. Obviously, I wouldn’t agree … [M]aybe the blind men were in the cockpit because they saw lightning, they saw weather and they continued their approach.

Q. ... I’d like to ask you to substitute an elephant for the thunderstorm for purposes of this question. Is it not true that if a reasonably prudent controller saw an elephant right north of the runway, the controller would say, “I see an elephant” and not “I see what appears to be a fan or a snake and so forth?”

A. Sir, we don’t cover elephants in our handbook. …

Q. Would you agree that a thunderstorm is more hazardous to flight navigation than light rain?

A. [G]enerally, a thunderstorm could be more hazardous than any rain ... [But the pilot] says he’s “in the rain, feels good.” To me, that means he is encountering rain … and ... not encountering any turbulence.

Q. ... I am going to ask you to assume that you are a pretty good tap dancer [and] that you enjoy tap dancing. Assuming those two facts, would you rather tap dance with Gene Kelly in a light rain or a thunderstorm? …

A. That’s my only choice? Gene Kelly?

Q. Yes, sir.

A. [There are] other people I’d rather tap dance with.

Q. Well, I’m asking you to assume that your favorite person to tap dance with would be Gene Kelly ... Would you rather tap dance in light rain or a thunderstorm?

A. I probably would like light rain. We could go with “Singing in the Rain” and dancing in the rain, things like that.

Q. Because it would feel good, wouldn’t it?

A. Probably wouldn’t feel too good if it’s raining on you ... I wouldn’t want to tap dance in the rain, period! But if I had to pick light rain rather than heavy rain, I guess I would pick light.

The judge later commented that the lawyer would undoubtedly see his name in the paper the following day.

Vic Fleming is a district court judge in Little Rock, Ark., where he also teaches at the William H. Bowen School of Law. Contact him at vicfleming@att.net.

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