AT HOME IN THE COURTROOM

Number 7 of “19 for 19”
#testimony #namwolf #preparation #witness #context

I recently joined a panel of fine trial attorneys, who along with in-house counsel presented a www.namwolf.org webinar entitled “Putting a Face on the Corporation.” I was more than happy
to dive into some of the social science that backs up what their vast experience, expertise and education had already told them was effective, and to provide a non-lawyer voice. Since no two trials are exactly the same, it is always a challenge to distill a multitude of courtroom lessons learned into digestible nuggets of helpful fodder.

Trump Russia Probe by Caroline Brehman via Getty Images
Trump Russia Probe by Caroline Brehman via Getty Images
Former special counsel Robert Mueller, accompanied by his top aide in the investigation Aaron Zebley, right, testifies before the House Judiciary Committee hearing on his report on Russian election interference, on Capitol Hill, Wednesday, July 24, 2019 in Washington. (AP Photo/Alex Brandon)
Former special counsel Robert Mueller, accompanied by his top aide in the investigation Aaron Zebley, right, testifies before the House Judiciary Committee hearing on his report on Russian election interference, on Capitol Hill, Wednesday, July 24, 2019 in Washington. (AP Photo/Alex Brandon)

Perhaps this was on my mind as I watched every minute of former
Special Counsel Robert Mueller’s recent congressional testimony about his March 2019 report. Intimately familiar with the formality of a civil trial, I was eager to see our government in action and to compare it to what I know about the courtroom. The process of giving live testimony continues to fascinate and intrigue me. I was also eager to observe the process of answering questions about a voluminous report covering the long and confidential investigation. The thousands of hours I have spent in courtrooms throughout the country, simultaneously tempered my expectations and fed my curiosity about the congressional testimony.*

Some of the most effective trial testimony moments I have seen (and helped prepare) have been underwhelming on immediate impact. I have not yet defended a dissertation, but I imagine those moments too are pulse quickening for just a few – the speaker and maybe one or two others in the room, but not everyone in the room. And I’ve often said, dramatic “Law & Order” moments do happen in the courtroom, but only in the context of days, weeks, sometimes
months of otherwise monotonous procedural record building.

I have been most impressed with those attorneys who manage expectations of the judge and the jury. They have a rare and patient confidence to “start with the end in mind” crystallizing the takeaway, not counting on the drama of the sound bite. Remarkably, they stayed tuned into appealing to ordinary citizens who are experiencing the process often for the first time.

I was surprised by the stark contrast to courtroom procedure when former Special Counsel Mueller was asked about specific parts of his report. Presentation technology used for trial, could have easily located any specific section of his report for him to see without any shuffling and within a matter of 2 seconds (and certainly without the PowerPoint-like slides, which were plain awful for reasons that will fill another blog post).

Watching an expert or fact witness flounder because they are being careful is difficult to watch, but is often and necessarily true to the process. Consider the end in mind: Once members of the jury adjust to the reality of trial (not the stuff of most watched legal dramas or binge-worthy serials), they often settle into their task rather quickly and start weighing evidence that has passed the admissibility test. I have witnessed in mock jury discussions, exchanges borne of collective reasoning and relief that the group agrees on the task at hand and on the universe of evidence to get them there.

When they are looking back at the totality of admitted evidence, which includes live testimony, we often observe juries evaluating the weight of expertise and key findings, not the degree of smooth in testimony. Often the diligent, methodical “explainer” of process and the results it yielded wins the day. Finally, what may have appeared as an erstwhile effort to take questions about the March 2019, 448 page report concerning a two year effort, might be better understood as a failure of setting expectations.

*Listening to our chattersphere, one might conclude that a good number of people wanted the hearings to be the movie version of the report (perhaps so they wouldn’t have to read 448 pages). In contrast to the courtroom, this congressional witness was questioned by a committee, spread out over two rows, with another layer of people behind them. The witness first needed to locate the questioner, then focus on their question, maybe review the visual being flashed all while enduring camera clicks coming from rows of squatting photographers on the floor in front of him. I’ll take the courtroom over that any day.