This topic has been on my mind for months now, for obvious reasons.
Apparently Matt Lauer brought it to the forefront with his lame “interviews” of Trump and Clinton. I wouldn’t know. I can’t bear to watch this stuff any more.
I say “interview” in quotes because nobody who does what I do for a living is able to take what these clowns pretend to do seriously. They don’t “interview” anyone. They simply invite them to spew sound bites: in Clinton’s case, canned rehearsed pre-packaged focus group approved sound bites; in Trump’s case, more off-the-cuff riffs that he obviously literally makes up as he goes along.
We try to be equal opportunity bipartisan critics on this blog, and it’s easy to see how either of these presidential contenders could be taken apart in a few minutes in the hands of a skilled trial attorney. Or Johnson or Stein for that matter. We can take on all comers.
After all, we are trial attorneys, operating without souls, eager to embarrass anyone who gets in our way, regardless of party affiliations. If you don’t believe me, just ask the trolls.
How do we do this? Pretty simple, actually.
For starters: we don’t settle. You know the expression “won’t take no for an answer”? That is pretty much my middle name when I am in trial mode. I don’t really care what you say or why or how. Where there’s a will there’s a way. A way to make you look bad. Every time.
That’s because there is always more than one way to see things. The trick is knowing what tools to use to accomplish that. Here are a few basics from every trial lawyer’s toolbox:
1. Preparation
Sometimes I wonder if reporters actually prepare. If they do, it really doesn’t show. At least they don’t prepare the way I do. I map out every question in advance, anticipating every possible answer, then plot out follow up questions to each possible permutation and combination of answers the witness might try to run past me.
Then I chart it all out, with multiple questions and answers all written down and ready to go. Just click the box by answering my leading question ‘No’ and we are off to the races, talking about all the reasons that answer does not work.
Answer yes? If that is what I wanted I shut up and ask the next question. If not, then we take the first approach.
The point is that there should be no surprises, no dead ends with my questions. No matter how the witness answers them I have follow up waiting for them.
2. Leading Questions
In cross-examination, the traditional rule is “never ask anything other than a leading question”. This can evolve with experience, but until you have done at least 20 trials it is best to stick to leading. Why? Because, if used properly, they should leave ‘yes’ or ‘no’ as the only possible answers. That way, it is easy to map out the follow-ups.
The other traditional rule is ‘always know the answer in advance’. Again, something that you can modify once you have done this a bunch. But knowing the answer in advance is all about the preparation. With presidential candidates you have about five gazillion hours of tape and umpteen pages of policy papers to draw upon (at least for Clinton), so the heavy lifting has already been done for you, largely by other reporters.
With trial attorneys it ain’t so simple. We have to actually build those data bases ourselves, scrutinizing the Discovery (witness statements, police reports, etc.) provided to us by the prosecution, together with any information we are able to collect through our own independent investigation and witness interviews, with no help from other lawyers along the way.
So for reporters this should be like falling off a log, which is why it amazes me that they seem so totally unprepared to ask their questions.
3. Prior Inconsistent Statements
These are my personal favorites; another area where preparation is king. Going into trial, I have them all lined up and ready to go. For every question I map out every time the witness said something different in the past.
If they change their stories, I ask them if they said the other thing. If they say no, I have laid the foundation to bring that other answer into evidence through other witnesses. If they agree, I’ve accomplished my goal. They can’t win for losing.
Reporters have all of the afore-mentioned ammo at their disposal to accomplish this. I have no idea why they don’t use it. Instead they just seem to give up and move on to another topic.
4. Never Surrender
Just like Churchill, good trial lawyers never surrender.
You don’t take ‘no’ for an answer and you don’t settle. Armed with extensive preparation, leading questions, prior inconsistent statements and the rest, we persevere.
One of my own favorite examples of this happened during a major arson/murder trial where my client was accused of setting fire to the decedent’s bed as he slept. Forensic experts from all over the country testified against us. Despite months (i.e. hundreds of hours) of preparation, I managed to notice something new, just as I was hitting my stride cross-examining their big fire expert.
I asked him about what I had noticed, and the conclusion I had reached. (Without tons of preparation, this ‘magic moment’ would never have happened – because I would not have known enough about arson to notice it.) Since it was not my first rodeo, I broke all the rules and jumped right into a brand new area that not only I, but also none of the experts, had previously addressed in their analysis.
He began to argue. So I asked him again, slightly changing my words in order to avoid an objection of “asked and answered” or “cumulative” (which, like most objections, is a fancy way of one lawyer saying ‘shut up’ to the other lawyer).
He hedged. I took another stab at it. Finally, after asking the same thing five different ways, he realized that what I was asking was not only possible, but probable, and that he had to give in an inch to avoid losing all credibility.
He said, “It is not totally wrong.”
I had him.
“So, then that makes me… right?” I just couldn’t resist driving the stake in deeper.
“Well…” followed by an unintelligible mutter of some sort.
“Say it!”
“Huh? Say what?”
“Say I’m right if I’m right. Say it! TELL ME I’M RIGHT!” I boomed.
I admit it. I have a bit of a soft spot for the dramatic during trial – and for punishing liars who are trying to send my clients to prison for life based on their incompetent testimony.
“Ok, You’re right, you’re right!” he capitulated. The prosecutor scolded me afterwards for showboating and being ‘over the top’. But I noticed that the entire jury was eating it up, hanging on every word, and beaming at me once I had eviscerated the s.o.b.
Month long trial, including two detailed (false) confessions made by my client – NOT GUILTY ALL COUNTS. Put that in your pipe and smoke it Mr. Smarty Pants Prosecutor. The jury later told me they hoped the prosecutor never used that stupid lying expert again.
So, why won’t or can’t TV reporters do this? Simply put, as always, I have NO IDEA.
How would I do this? Simple.
For starters I’d take advantage of the billion-dollar support structure I have, complete with infinite video libraries loaded full of inconsistent sound bites and prior interviews. I’d have one of my 200 assistants have clips lined up, ready to hit play, to show the evasive candidates the errors of their ways.
Trump says he always opposed the War in Iraq? Play him telling Howard Stern the opposite. Then follow up with such simple questions that no five year old could be confused.
“IS that you? Is the date such and such? Are you saying the words [insert quote here]? Did you mean [repeat those exact words]?” And on and on. Actually, this technique would work with almost everything that comes out of Trump’s mouth.
If he replies by saying, as he usually does, “Clinton is a stupie face” or words to that effect, I’d simply ignore him and ask again. I’d keep ignoring his obfuscating and avoidance and force him to answer. I wouldn’t just shrug, say OK, and then whine later about how he wouldn’t answer.
He’d answer me eventually, “believe me.” Trump is nothing compared to the Homeland Security honcho who had to fly back from running U.S. Security for the London Olympics to testify in one of my trials. I managed to make him look like doo doo, no problem.
Clinton? Easy Peasy. We’d begin by asking why she had a separate server set up in the first place. Keep it simple. Segue into the weddings and yoga, maybe asking her about doing that stuff when she was on taxpayer salaried time. Then start asking if she realizes that she gets half of the 17 million dollars Bill earned touting some bogus fake college, since New York is an equitable distribution state. (She’s a Yale Law Grad, after all). Then show that some, or even all, of that 17 million is legally hers too. Take it from there.
I really think we might actually find out whether she likes money or not? Which I’d ask her. “Did you know about Bill’s 17 Million bonus, or did he hide that from you? How did you feel when you found out? Happy or sad that you were now even richer? Do you like money? Do you like to buy nice things? Or not? How much did that designer dress you’re wearing cost?” And, of course, I’d have the price saved on line to show her if necessary. I suspect it would be.
Sound silly? It’s not. When they try to minimize the great deals they are given in exchange for lying, I like to ask the snitches if they love being in jail or prefer to be out. We may talk about that for a while, hammering home the fact that they would do anything to get out of jail, or earn millions of dollars, or get elected President when they have no real experience.
Like that.
Johnson would be beyond easy. The first question would be when was the last time he smoked a joint. There is no good answer to that question. Or Stein. I’d ask her if she thought it was okay to commit a crime just to get elected, and then follow up with that photo of her spray-painting the bulldozer.
So, “believe me”, it can be done. Why reporters don’t do any of this is beyond me.
Which is why I suggest that CNN and Fox and MSNBC go out and hire some trial lawyers to show them how it’s done. If they did maybe we would get to the truth of some of these things, instead of watching them all sitting around afterwards, wringing their hands over how the nasty politicians never answer their questions, maybe we’d get some answers.
For a change.