Superstition: can superstition affect litigation?

Many people are superstitious. We often read about sportsmen who will insist upon following a set routine. There was recently a problem with the one premiership football team coming out for the second half of a match, when one of the players for the particular team was injured and one of the other players, his teammate, who for superstitious reasons insisted on being the last one out of the tunnel, was refusing to come out because since the injured teenager was not coming that would mean that the superstitious one was not the last one out, so that at first only nine players emerged for the second half. Others will recall that some tennis players will keep on with the same routine every day as long as they're winning matches. It is said that one Wimbledon winner was for this reason forced into watching Teletubbies everyday in order not to break his lucky streak. I suppose the prize of winning Wimbledon made it just about worthwhile.

Suspicion of course is to be distinguished from those concerns which are based upon something rational, however slender. Thus for example those persons who are reluctant to travel today or do anything on the basis that the date is 999 (and that this is a form of 666, a diabolical number) are plainly superstitious. However those who are concerned that the 911 terrorist attack (following the US pattern of month/date) was deliberately timed on that date because it replicated the US emergency services number 911, and who are concerned about travelling today because they believe that the same might happen here on the basis that the date is 999 and the emergency services number is 999, may well be wrong but they are not acting irrationally. It is like the difference between those people who did not want to be caught flying at the time of the millennium in case the (much hyped and in the event virtually non-existent) millennium bug caused computers to fail, (for younger readers who may not have been aware of this at the time, the concern was that the computers might become confused by the resetting of the year dates to 00 and that this could cause catastrophic failure) and those who will not travel on Friday the 13th because they are superstitious about that date.

One would have thought that superstition would have no place in the law because it is the opposite of rational thought which should be the cornerstone of any legal system. However just as there are footballers who want to wear a "lucky" item so there are some professionals who are the same, whether it be wearing lucky cufflinks a particular colour or type of socks or whatever. Although professionals might joke about such matters, no one seriously believes that those superstitions can seriously affect the outcome of the case.

However superstition can affect the outcome of litigation, not because the superstition is correct but because of the effect upon the person who believes. (By analogy with curses: those who believe that the curses will have effect mean that they are much more likely to. A person who is at their wits end with worry is much more likely to end up having a heart failure or serious health problem in response to a curse condemning them to death than would be the case with someone who does not. Similarly one recurring feature from books about soldiers in warfare is how many soldiers appear to have premonitions of death and talk of them and so just before the fateful battle give their belongings to a colleague for safe keeping to ensure that on the particular soldier's death they will go to loved ones (as opposed to being plundered or lost on the battlefield). Of course such stories not only failed to dwell on those who do this and do not die, but also take no account of the fact that the person who is preoccupied with the thought that they will die may be sufficiently preoccupied for it to affect their reactions by a split second, which in warfare is all that it needs to get you killed.).

For example I would be more than happy to litigate on Friday the 13th (even if the superstition were true, logic would dictate that if litigation is unlucky to someone it must be lucky in favour of someone else) unless I had a superstitious client or important witness. It is not the date which they have to worry about, but their reaction to it.

Similarly if you have a witness who has a particular superstition about a lucky charm, it is never a good idea to proceed without them having the opportunity to find it if it is missing. The charm is irrelevant. Their psychological reaction to its absence is not.

Thus although superstition ought always to be irrelevant in the court room, in practice it is not. The only significant is that that demonstrates the court rooms are not just about legal principles, but about people. Things that cause people to behave differently, or not give of their best, can never be irrelevant in the drama of court proceedings.