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Topics to Consider Transcript April 7, 2024 New York Eclipse Conference

Advise on Assumptions and Opinion Testimony – Denver & Stephanie Snuffer

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SS: Okay. (I’m sorry. I just put a mint in my mouth.) Alright, so the next one is: We’re gonna talk about assumptions. And I have to… We keep having these conversations. I cannot… (I don’t know what this is.) I refuse to talk or have a conversation or listen to a conversation if the premise of the conversation starts on an assumption. If the premise of the conversation starts on an assumption—meaning you just think you know something, and so you’re going to start to have a conversation—I will literally stop you. Because I cannot do that. It is such an enormous waste of time to talk about something that is not grounded in any kind of fact or truth whatsoever. And when you start to pay attention to it, you will stop talking to a lot of people! And the rest of us should just shut our mouths because we’re not actually saying anything. We’re just walking around, opening our mouths, saying, “Hey, did you hear this?” And I’ll say, “Where did you hear that?” And they’ll say, “Oh, so and so said, ‘So and so,’” and I’m like, “Stop there, okay?” Not a conversation I’m willing to have, because there’s nothing to it. And so, this idea of assumptions and operating from a place of assumptions is incredibly toxic to interpersonal relationships. Even, I mean…

And it’s amazing how assumptive we actually are, right? So it is as simple as: He comes home from work, you know, kind of cranky or… I don’t know, maybe he comes home from work, and I’m cranky; let’s do it that way. He comes home from work, and I’m cranky (had a tired day; I’m hungry; I didn’t have plans for dinner), and I snap at him because—I don’t know why—because I’m cranky! And he just, for some reason (maybe he’s not feeling particularly resilient that day), and he just sort of goes into a spin, and he thinks that I am mad at him. And then he starts to think of a conversation we had this morning that maybe didn’t go perfectly. And he’s like, “Oh my gosh, that’s why she’s mad at me.” And then we spend three hours just kind of poking at each other unnecessarily because he assumed—because I was cranky—that I was mad at him. How is that fixed? Well, it’s generally not, right? We go to bed, and then we wake up in the morning, and everybody’s fine. But we actually wasted three hours of some amount of emotional dysregulation and disconnection because of a 30-second exchange when he walked in the door. [Addressing Denver] What could you have done?

DS: I could have stopped at McDonald’s and…

No, umm, the… There’s a statement that kind of stuck with me. Carl Jung, the psychologist, this is a quote from 1937. It said, “In the absence of facts, we project what happened,” meaning: When we don’t know the truth about something, then we draw on ourselves and we project the things that we fear (or we are) into assumptions about the other person. So when you don’t have facts BUT you are viewing someone narrowly and critically, what you’re probably doing is you’re revealing something TO yourself ABOUT yourself, not about them. I thought it was a profound insight, because we really do let our fears inform what we think of others, and often our fears are based upon what our own internal problems are.

This was the one where we talked about the law.

SS: Yes. Yeah. Okay, hold on just a second. I want to brief… And then we’ll probably end with that.

So assumptions erode trust. I’m just going to tell you what happens when you operate from a place of assuming something. I mean, besides the fact that it makes an ass out of you and me, right? Do you remember when your teacher used to write that on the board or whatever? ASS-U-ME, which is really ironic because that is the very… That’s the bedrock of what assumptions are. Assumptions erode trust. They break down healthy communication—assuming you have healthy communication. Assumptions break down healthy communication. They build and breed resentment and conflict. They are barriers to intimacy and personal growth. There is a loss of self expression and agency, especially if someone is making assumptions about YOU. If I assume that my child is intentionally misbehaving and that is the way I deal with that child, then that child has lost the opportunity to express him or herself and be autonomous in sharing with me what is actually going on for them. So I want you to pay attention, because you will be SHOCKED at how much of your life is built on assumptions and conversations that take place around them.

So this was where we talked about it because…

DS: Yeah.

SS: So let’s… Yeah, let’s talk about it. We were talking about how assumptions play into our lives but particularly him—because his life is literally built on facts, right? I mean, 30 years in the law practice, it’s facts and only facts! So what were we talking about?

DS: You cannot—under the rules of evidence, both state and federal—you can’t offer opinion testimony except within extremely narrow confines that require you to have some kind of basis for offering the opinion, and it has to be qualified, based upon knowledge, experience, education, training. Other than that, you can’t offer an opinion. So a witness says, “Well, he was at fault in causing the car accident.” That’s an opinion. That’s a conclusion. Why are you saying that? If that was the testimony, there would be an objection, the objection would be sustained, and if the witness managed to say that before the objection, the judge would say, “Strike it from the record.”

• What did he do?
• Where was he at?
• What time was it?
• Where were you located?
• What opportunity did you have to observe?
• Describe what it was, then, that you saw.

All of those things are foundational before you ever get to a fact. You’re not allowed to just spew things in the courtroom because the courtroom is a fairly serious moment in which you’re trying to resolve a problem. If the problem were easily resolved, you would never have a trial. The only cases that go to trial are the ones where there are two legitimately different stories, and if you believe one story, they will win, and if you believe the other story, they will win. And both sides believe so intensely on the story they’re telling that they can’t resolve it between them—because they simply disagree on what the facts are. So when you finally get there and you’re presenting the case, you don’t get to say, “She’s a bad woman. She was mean. She treated me badly.” Okay, I… Maybe. Yeah, okay. I object. And let’s talk about:

• Who? (Her)
• When?
• Where?
• Was anyone else present at the time?
• Are there other witnesses who saw the same thing you claimed to have beheld?
• Can we get corroborative evidence for this?
• Was it recorded?
• Is there anything other than your word that will allow me to accept the fact that you’re about to offer about what she did that was so troubling?

And at the end of all that, if the final statement—once you’ve laid a foundation so that you know who, what, when, where, and your opportunity to observe, you put out a fact—it is possible that the trier of fact is gonna say, “Yeah, but my wife does that to me every day. She… I wouldn’t call her ‘mean.’ I would call her ‘forthright’ or something a little more laudable.”

We tend not to ever get down to the fact. We tend to “high-level” our descriptions of what went on in characterizations, conclusions, opinions—and completely devoid of facts. And we do that just as a matter of common conversation because it takes a lot of time. Trials take a lot of work. It takes a lot of training for people to finally get to the point that the presentation is focused on the facts that happen.

There have been cases where I knew—I knew!—I could absolutely tear apart the nonsense that the judge was going to hear from the other side, and they offered a bunch of objectionable opinion and conclusions, and I didn’t make any objections. And I’ve got a judge sitting up there looking at me like, “Did you take the day off, Counselor? What are you doing?” I’ve even had them ask me, “Are you not going to object?” And I’ve had to say on occasion, “No, Your Honor, I don’t have an objection to this line,” but that’s because I have photographs, and I have recordings, and I have documents, and I have other witnesses, and every one of them is consistent, and the nonsense you just heard from the witness, I am going to utterly undermine. And so I want them to do this. Because when you hear the facts and when we finally get to the bottom of it, then you’re going to say, “I can disregard everything that that witness said because it was simply a bunch of negative opinions without any foundation.”

Look, we tend to be far more sloppy, careless, disrespectful, unkind, and frankly, incredible (meaning lacking credibility) in our everyday conversation. I don’t expect you all to become trial lawyers overnight, but it would be nice—particularly if someone has something critical to say about someone else—if you tried to find where the fact was. Because the opinion may be very negative and honestly held, and perhaps, in that person’s experience, not only understandable, but maybe that’s the right way they should view the person because of their own life’s experience. But it doesn’t mean that you should share the view unless you make a reasonable enough inquiry to try to get to the bottom of it to figure out what they did. What people do is bad enough. We don’t need to pile on with our opinions.

SS: Yeah, I want to say, too, that this… We practice this wrongly in our relationships, right? This is… We… This is our standard mode of operating (going back just to the basic, you know, example that I used with Denver). And so, it IS a lot of work. It IS a lot of work to build resilience. It IS a lot of work to operate from a wise mind and marry the rational and the emotional together. It IS a lot of work to get to the bottom of what is potentially an assumption. Make no mistake, it IS a LOT of work. It’s not trial-level work but close. And the payoff is much better than trial-level work.

The reason the payoff is better is because everything that you practice in terms of these kinds of skills will improve your relationships, create greater intimacy, build bridges, bring you together. What we’re doing is either keeping us apart or it’s keeping us at the status quo, right? And if our goal is to become, you know, exalted (holy crap), if that’s our goal (our goal is to be exalted), that’s where the work is—right?—because I’m pretty sure we have a set of Heavenly Parents who are still doing this stuff because I don’t think this ever ends, right? As long as you are in a relationship with someone, this is your work. And so when we practice making assumptions (with our kids and with our spouses and with our siblings and with our co-workers), and when we have a imprecision of language and we do not use the correct words for the correct things, and we’re sloppy in our emotional expression, and we’re sloppy in our, you know, we don’t get back up as quickly as we should, that takes a toll on us.

DS: Um-hmm.