The typical case is fact-specific where the outcome turns on the precise circumstances involved. Large ideas—the right to privacy, freedom of religion, freedom of speech, etc.—really do not play that important a role. The finder of fact is more interested in answering a simple question—what actually happened?
But at the appellate level courts routinely have to decide cases based on ideas. A common tendency of those advocating before appellate courts is to neglect the facts and focus predominantly on theory. But too often theory invokes competing values adrift in an amorphous realm with no real method of determining their relative importance or validity. Simply put, a general rule of thumb is this—the more general the idea at stake the more important the facts.
For example, the United State Supreme Court last term ruled that ineffective assistance of counsel could not be established merely by counsel’s failure to unearth for cross examination an earlier report that cast doubt on the validity of a ballistics method known as Comparative Bullet Lead Analysis (CBLA). Maryland vs. Kulbicki, 577 U. S. ____ (2015). The Court pointed out that— “And then, would effective counsel really have brought to the attention of the jury a report whose conclusion was that CBLA was a valid investigative technique in cases just like Kulbicki’s?” Id.
But what other facts in this area were left undiscovered and undisclosed? Were there similar studies in existence at the time (or previously) that cast doubt on the scientific validity of CBLA? How many? Had other Courts from around the country ever barred the use of CBLA due to flaws in its method? Quite aside from written reports, could the defect in methodology have been revealed merely by disclosing an opposing expert familiar with the then-known limitations of CBLA? Etc.
These questions all implicate facts, not theories. So the constitutional issue—was there a denial of defendant’s right to assistance of counsel?—hinged not so much on the meaning of the Sixth Amendment, but more on the specific facts presented to the Court as developed as part of the record on appeal.
Facts can never be too highly valued. A single fact—if discovered and presented—can often carry the day. And a theory carries weight—distinguishes and differentiates—only when applied to a certain set of facts. As has often been said—facts win cases, not theories. But lawyers are drawn to theories because they are subject to interpretation, and thus fit well into the basic framework of legal argument. But the first task of any effective argument should always be the discovery and presentation of the facts.
