IN A DISINFORMATION WORLD, LEGAL DECISIONS ARE A TERRIBLE WAY TO COMMUNICATE THE TRUTH

The Washington Post tells us that public perceptions of the 2020 election and the January 6 insurrection are headed in the wrong direction:

Three years after the Jan. 6 attack, Republicans are more sympathetic to those who stormed the U.S. Capitol ... than they were in 2021, according to a Washington Post-University of Maryland poll....

When The Post and UMD asked in December 2021 whether Biden was legitimately elected, 69 percent of Americans said he was. Now, that’s down to 62 percent.... fewer Republicans today (31 percent) say Biden’s election was legitimate compared with 2021 (39 percent).

This paragraph in the Post story is particularly disheartening:

Several voters interviewed by The Post cited what they said was evidence of voter fraud, in particular the long-debunked claim that Georgia election workers were caught on video putting fake ballots into tallies. The two women in that video recently won a $148 million judgment against former Trump attorney Rudy Giuliani for spreading those defamatory claims.

How can Republicans continue to believe that there was electoral fraud in Georgia when a court recently said that Giuliani's claims of fraud in Georgia were defamatory to the election workers he accused? But that's the problem: the determination that Giuliani was wrong about this took place in a court of law.

Americans absorb information visually, through video clips on social media and television. They absorb words, but the words have to be direct and to the point. The Giuliani trial was not televised. Neither were dozens of cases Donald Trump filed in the aftermath of the 2020 election, all of which he lost. Obviously Trump's hardcore base has confirmation bias, and would ignore even verbally and visually compelling rejections of Trump's election-fraud arguments. But for people in the middle, there was nothing compelling to watch or read either. When there were legal rulings by judges, they were inevitably written in heavily annotated, incomprehensible, turgid prose.

It's true that, back in August, Giuliani was found to have defamed two Georgia election workers; the trial that recently concluded was intended only to determine how much money Giuliani has to pay those workers. It would be nice if some of the language of Judge Beryl Markham's August ruling could go viral. But legal writing doesn't work that way. Here's the first paragraph of Judge Markham's ruling, in its entirety:

The Federal Rules of Civil Procedure authorize “[l]iberal discovery” for the “sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes,” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984), with “the only express limitations [ ] that the information sought is not privileged, and is relevant to the subject matter of the pending action[,]” but without “differentiat[ing] between information that is private or intimate and that to which no privacy interests attach,” id. at 30. As such, “the Rules often allow extensive intrusion into the affairs of both litigants and third parties.” Id. Crucial to fulfilling this central purpose of civil discovery is that parties “comply fully and timely with their discovery obligations ... to supply relevant testimony and documents for a fair appraisal of the facts and a ‘just’ determination.” Freeman v. Giuliani, No. CV 21-3354 (BAH), 2023 WL 4750552, at *1 (D.D.C. July 13, 2023) (quoting FED. R. CIV. P. 1). Obviously, only extant documents and data are producible, so parties must also take reasonable efforts to preserve potentially relevant evidence, including electronically stored information (“ESI”), when litigation is “reasonably foreseeable.” Gerlich v. U.S. Dep’t of Just., 711 F.3d 161, 170–71 (D.C. Cir. 2013). To incentivize and enforce compliance with these procedural rules, sanctions may be imposed when ESI should have been preserved “in the anticipation or conduct of litigation” but “is lost because a party failed to take reasonable steps to preserve it[.]” FED. R. CIV. P. 37(e)

The ruling goes on like this for 57 pages.

I'm not saying that legal language ought to be thoroughly dumbed down to match the comprehension levels of the social media era. I'm saying we need to understand that the key points of legal decisions frequently don't penetrate the public consciousness.

It would be good if we routinely televised trials on issues of great public interest. People today are more likely to absorb the news visually than verbally. It would also be beneficial if legal decisions included more plain English -- the legalese can stay, but it would be helpful if key points were presented intelligently but directly.

I'd be curious to know whether most Americans even realize that Trump took his fraud case to court dozens of times, and repeatedly lost. It's clearly not a compelling part of the national memory.