Proving What Fails to Exist Is Sometimes Just As Important As Proving What Does Exist

By: Scott McEachern, legal practitioner coach

Litigators sometimes get so focused on proving the truth of what happened, or trying to disprove the testimony and evidence of the opposing party, that sight is lost on the importance of proving the truth of what failed to happen; however, sometimes a key factor, perhaps even a significant turning factor, can occur by proving what failed to happen or even what failed to exist.

In the movie A Few Good Men, starring Tom Cruise and Kevin Bacon, among others, there is a scene where a witness is under examination by the characters played by Tom Cruise and Kevin Bacon.  During the scene, Tom Cruise, as defence counsel for two military men charged with murder, is attempting to prove that military personnel engage in a practice known as a Code Red which involves punitive discipline performed by personnel within the platoon ranks.  After eliciting testimony regarding the occurrence of Code Red practices, Kevin Bacon, as prosecutor of the murder charges, performs cross-examination and is able to elicit testimony that official military procedures lack any directives regarding Code Red practices, thereby showing that Code Red activities are unsanctioned and unsupported by the military.  Kevin Bacon does this by asking the witness to read from a military training manual the section or pages that explain how, and when, the Code Red practice should be conducted.  Of course, the military training manual, among other things, is absent of any details instructing of the Code Red practice.  Subsequently, and impressively, after the cross-examination by Kevin Bacon demonstrates that the Code Red practice is without any official sanction and thus any such practice involves military men engaging in unsanctioned discipline, the redirect examination by Tom Cruise demonstates that the military training manual also lacks details instructing of where the mess hall (dining hall) is located and yet the military expects military men to eat; and thereby the implication that many common practices and procedures are unwritten.

Actual True Case Example

During my own years in practice, while representing the Defendant in a failure of payment case, when cross-examining the Plaintiff, the question was asked, "Please read on the contract the part that states the interest rate".  The Plaintiff then stated, somewhat smugly, "Yeah, it says - overdue accounts are subject to two percent monthly interest".  Accordingly, the next question asked of the Plaintiff was, "Thank you, now please read where the contract states how much that works out to as an annual interest rate".  The response from the Plaintiff was, "It doesn't"; and accordingly, the testimony, and therefore the evidence put onto the record, was that the contract failed to state an annual interest rate; which is a violation of section 4 of the federal Interest Act, R.S.C. 1985, c. I-15 and thereby nullifying of any purported interest charges.

Sometimes proving what fails to exist is as important as proving what actually exists.

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