When my kids were young, I enjoyed watching Sesame Street with them. I thought some of the humour was so clever, it had to be written for parents.
My favorite bit was when Ernie shows Bert a blank canvas.
“How do you like my painting?” Ernie asks.
“What painting?” says Bert. “It’s a blank canvas.”
“No, it’s not, it’s a cow eating grass.”
“Where’s the grass?”
“The cow ate it.”
“Where’s the cow?”
“After it ate the grass, it went home.”
Fast forward 30 years. I am acting for a property owner in an insurance claim where the defence is arson. The insurer claims my client torched the place for the payout. In these cases, a key issue is whether the fire investigation revealed the presence of an accelerant, for instance, gasoline.
All of the reports, including the fire department’s, show no trace of an accelerant. Yet, when the insurer’s investigator was asked directly if one was found, he answered yes.
I was confused. My first question on cross-examination was:
“How can you say there was an accelerant when not a single investigation had detected one?”
His answer?
“Oh, once they went to do the testing it had dissipated and was no longer present.”
As soon as I heard that, I thought of Ernie and Bert. It’s a reminder that inference cannot replace evidence, especially when science and facts say otherwise.
In my closing to the jury, I told them the whole Sesame Street story.
The jury laughed. The judge laughed. Defence counsel did not laugh. I won.
If this happened today, I could have shown the jury the skit – it’s on YouTube!
