ARROGANCE

Arrogance. Pure arrogance. J'accuse my candidate of arrogance.

I have tried lots of cases, some before judges, some before juries. The discipline is largely the same, the differences are at the margins.

Broadly speaking, there are four blocks to trying a case: i) an opening statement (you tell the jury what you intend to prove), ii) your direct case, (direct testimony from your witnesses), iii) cross-examining your adversary's witnesses, and iv) a summation (you tell the jury what you have proved and point out the weaknesses of the adversary's case. This is your opportunity for emotional gut punches.)

 (As you may have noticed,  items ii, iii, and iv, apply to political debates as well.)

 Whether you are representing a large corporation or a privately held enterprise, the likelihood is that one of your witnesses, sometimes the only one, is going to be the big kahuna, the CEO, the owner, the guy at the top. He is accustomed to giving orders, not taking them. He is smarter and richer than most, and he knows it. He is persuaded he is not only smarter than the adversary's lawyer, he is smarter than you too. He is certain he is smartest guy in the room, and proud of it.

And he may be right. That's how he got to the top of the ladder. He built the best mousetrap, sold the most widgets, bought low and sold high, a capitalist star.

As a businessman, he's heroic. As a witness, he can be a nightmare. Why? Because even though he has never done this before, he is sure he will be a star witness in court, handle the adversary lawyer with aplomb, and impress the hell out of the jury. After all, that's how he got to be the big kahuna, right?

So Mr. Kahuna refuses to take your advice that the courtroom is a way different from the boardroom. It is the difference between sea and city -- a unique world where the lawyers are frequently the sharks and big kahuna witnesses are chum.

So we begin to prepare Mr. K for trial. To do that, we need 
to go over every word of his planned testimony. It's not
 only what he says, but how he says it. We need to be 
sure he covers every base, and at the same time 
doesn't say more than he needs to say. Extraneous 
matter is grist for the cross-examiner's mill.

When we have his direct testimony in the bag, we 
need to prepare him for cross. We need to ask 
every hard question the adversary is

going to ask, and drill our witness to answer directly, 

truthfully, and without volunteering unresponsive 
information. We  need to go over every statement 
the witness has ever made, or agreed with, and 
rehearse, yes rehearse, answers that are not 
only responsive, but correct, pungent and persuasive.

Oftentimes this training involves a number of lawyers badgering their client, who defiantly resists all those gnats buzzing about his head. "Don't you damn lawyers realize I've got a company to run? I've got this. I am out of here. Call me when you need me to be in court!"

Some examples. I once represented a powerful builder. He was one of the giants who contributed to Manhattan's prominence. He was sued by an investor who thought his share of profits was understated. The claim lacked merit, but we had to go to trial and preparing my developer kahuna for that event was a bear. Lots of documents, lots of accounting, lots of meetings. He resisted my efforts at preparation as if I were his adversary. I had to appeal to his partners and his sons to get him to table and keep him there. His answers to my questions always included information that was unnecessary and not responsive, but which he thought showed how successful he was.

He so resented my successful insistence on his preparation, he actually punished me at trial! When I stood at the lectern and asked a question, he gave an appropriate answer. But when I walked to the witness box to hand it to him a document, he had me: while I returned to my lectern, while my back was to him, he quickly volunteered testimony he knew was irresponsive and boastful. He was like a nine-year old, getting even with me when my back was turned! After two such instances, I had one of my colleagues hand him the documents. I had to keep my eyes on this kahuna to make him behave.

The worst experience I ever had was when I was a young lawyer. It fell to me to prepare our major witness for direct testimony in an arbitration. The witness was himself a big-shot lawyer, though not a litigator. He constantly put me off, telling me he didn't need preparation because he knew everything, he had negotiated the contract at issue, drafted it, blah, blah, blah, and always suggested a "tomorrow" for what he saw as unnecessary preparation. My mistake: I let it happen because I was insufficiently experienced with dealing with kahunas, and because the trial schedule called for him to testify many weeks later. But on the first day of trial, the Chief Arbitrator suggested that Mr. Kahuna, who clearly was the most knowledgeable witness, be the first to testify. Mr. Kahuna, full of self-assurance, said "Absolutely. A capital idea," and in the first fifteen minutes of his testimony set the world's record for stupidity, forgetfulness, and meandering unresponsive answers to his own lawyer's questions. Fortunately, my boss  came up with some effective excuse  to interrupt his testimony and yank him off the stand before he torpedoed our case.

The inverse: an example of a kahuna blowing himself up on cross-examination. Happily this involved an adversary. When my client sued CBS for libel, the key adverse witness was Walter Jacobson, the Chicago station's lead newscaster, whom we charged with making false defamatory statements on the air. When I took his deposition before trial, he exhibited all the kahuna characteristics. He deflected my inquiry by testifying that he wrote the script but barely remembered doing so, he did hundreds of these broadcasts, and how could I possibly expect somebody as busy and important as he to remember the details of his preparation of this single editorial rant that was broadcast more than a year ago?

CBS was represented by a major law firm, and I am sure they prepared their chief witness. Or tried to.

The consequences of that failed deposition prep bloomed at trial. When it became apparent that the jury might well find that his broadcast was indeed false, it became important for him to prove that he nevertheless believed it to be true. That would have been a total legal defense to my claim.

So, with the jury in the box, on his direct examination he testified that he specifically recalled typing each word on the script, and being confident in its accuracy as he did so.  He distinctly remembered being persuaded every word was true. He constantly repeated that refrain. But on cross, when I read to the jury his earlier sworn testimony about him being way too busy to remember anything about what he was thinking when he wrote the script, he was ground chum, fish food diced and sliced. A three-week trial, and the jury found for us after deliberating for less than an hour and a half.

Now, as to Mr. Bloomberg: A disastrous national appearance. The candidate whom I believed was going to save us from the Scylla and Charybdis of Child-King Trump and Angry Socialist Sanders, humiliated himself before the largest Democratic debate audience in history. 

How come? Not smart enough? Couldn't remember the facts? Was surprised by his adversaries' questions? Answer: None of the above.

Mr. B, who built a 68-billion-dollar fortune by his wits, obviously was unprepared. Sure he had been drilled, but you could see from his performance that he was taken aback by the ferocity of the attack, and gave inadequate and wooden responses. In my mind's eye, I see those prep session acolytes fearing the wrath of MR. BIG: "I got this. What's the next question? C'mon, let us not waste time. I'm too busy for that. Dress rehearsal? Don't be silly! Let's get this over with!"
And they gave in to the tyrant.

Mike may recover. I sure hope so. I've already invested in a pair of BLOOMBERG 2020 bumper stickers and I see him as the only alternative to Bernie-the-Red, who, if nominated, will be chum to Trump's attacks on his pie-in-the-sky socialism.

I'm only sorry I wasn't watching when Bernie proposed that 20% of the stock of all companies be given to the workers. Did Mike's scalp lift off his head? Steam come out of his ears? Should have. Bet it didn't.

I turned off the television early on. It was like watching Fox News. I couldn't bear it. I gather Mike improved somewhat in the later segments, but I did read that in his effort at a knock-em-dead closing, Bloomberg said that elected officials "should understand what they are doing and the implications thereof." Really? Which preparation genius taught him to add that line to his conclusion? That'll get em in the gut, Mike. None of this "God Save America" or "I can beat Donald Trump!" stuff. Just end your preroration with "and the implications thereof."

I agree with Trump: When asked who he thought won the Democratic debate, The Donald responded, "I did."

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want notice of each    new posting, send me an email and I will add you to the notice list:  mlondon34@gmail.com

For more information about the Jacobson libel trial, see my memoir, "The Client Decides," available on Amazon and Kindle.