The 1892 book, the Memoirs of Sherlock Holmes by Sir Arthur Conan Doyle, is a collection of short stories. One of the stories is “Silver Blaze,”a mystery about the disappearance of a famous racehorse the night before a race and the murder of the horse’s trainer. Sherlock Homes solves the mystery in part by recognizing that no one he spoke to in his investigation remarked that they had heard barking from the watchdog during the night.

Gregory (Scotland Yard detective): “Is there any other point to which you would wish to draw my attention?”

Holmes: “To the curious incident of the dog in the night-time.”

Gregory: “The dog did nothing in the night-time.”

Holmes: “That was the curious incident.”

The fact that the dog did not bark when you would expect it to do so while a horse was stolen led Homes to the conclusion that the evildoer was a not a stranger to the dog, but someone the dog recognized and thus would not cause him to bark. Holmes drew a conclusion from a fact (barking) that did not occur, which can be referred to as a “negative fact,” or for the purpose of this discussion, an expected fact absent from the record.

English: Second of the four illustrations incl...

Illustration included in the Memoirs of Sherlock Holmes by Arthur Conan Doyle. (Photo credit: Wikipedia)

It is not that difficult in many legal circumstances to recognize that you expect certain facts will be demonstrated — like the barking of a watchdog during the commission of a crime — and thus the absence of those expected facts can have meaning. Let’s look at an example of how I attempted to draw out a conclusion favorable to my client, a property owner, in an appeal of a judgment for the plaintiff in a slip-and-fall case. The plaintiff received a large compensatory damages award  based on his testimony of pain and mental anguish, including “anxiety” and “depression.”

Under Alabama law, awards by a jury of damages for mental anguish/emotional distress are reviewed under the standard of “strict scrutiny”of the evidence. In questioning the large sum of damages  as not being supported by the evidence, I wrote:

Although [the plaintiff] testified extensively to the jury about the “anxiety” and “depression” that he suffered as a result of his injuries, he presented no medical testimony of a diagnosis of depression, nor any evidence that he had sought medical treatment for anxiety though he regularly visited his physician for treatment of his diabetes and high cholesterol.

This sentence was designed to bring attention to the fact that although the plaintiff testified that he suffered from anxiety and depression, he failed to have the type of evidence one would expect to support those claims, rendering his testimony suspect.

Another issue regarding the damages award was the plaintiff’s claim of lost wages as a construction worker based upon his testimony that his injuries rendered him completely unable to work. I responded to this argument by not only pointing out there was some evidence that he had worked “off the books” for his brother’s construction company following his injury, but also by noting that despite all his testimony of being unable to perform any type of work or even engage in his hobby of fishing, there was no evidence that the plaintiff had applied for Social Security disability status as one would naturally expect should his injuries actually be as severe and debilitating as claimed.

Thus, instead of the dog that didn’t bark, as expected, my brief described a plaintiff who didn’t see a physician for his anxiety and depression and didn’t seek Social Security disability income and I asked the Court to draw a conclusion from those negative facts just as Holmes drew a mystery-solving conclusion from the curious behavior of the dog.

This technique can also work for you in the right case, so why not give it a try.

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