Supreme Court nominee Brett Kavanaughs testimony before the Senate Judiciary Committee last week was a tutorial in how not to conduct yourself as a witness.
Good lawyers are experts at identifying credible witnesses, both to help coach their clients on giving evidence, and to spot weaknesses and lies in opposing witness testimony. What do we know about Kavanaugh and his testimony when considering the common and simple directions that lawyers give their clients before giving testimony?
Remain calm
One of the first things I tell my clients not to be defensive. You will be asked more questions than you can imagine or think fair. You will be asked questions that may sound offensive. You will be asked dumb questions. Do not react.
It is normal to be defensive when someone accuses you of bad behavior. But in court, people who appear defensive or indignant look and sound like they have something to hide or are trying to distract you from asking important questions.
Simply put, the lawyer cross-examining you wins points when they make you defensive. You win points when you remain calm because it makes an aggressive lawyer seem rude, unfair or even cruel.
Kavanaugh was defensive and indignant throughout his testimony.
Theatre of the courtroom
Some people think that the way to demonstrate youve done nothing wrong is to react with anger at the suggestion you have. With testimony, that is completely wrong. Reacting with anger appears fabricated, like you are putting on a show.
Theatre in the courtroom is best done subtly less is more.
Far from being calm, Kavanaugh seethed, shouted, and even growled at points. His anger came across as forced rather than a genuine emotional reaction.
Evading questions
I tell all of my clients to answer questions simply and directly. Do not talk around a question. If you don’t understand what you’re being asked, then request clarification. If you do not remember something, say you do not remember. If you are not certain about something, say so. Be honest and precise.
People who delay answering a question look like they are trying to come up with an answer to get them out of trouble or avoid contradicting an earlier statement.
Kavanaugh was a classic evasive witness. He repeatedly failed to answer questions, like whether he supported an FBI investigation of the sexual assault allegations against him, or whether he ever drank until blacking out. Kavanaugh responded to questions about his drinking by asking Senator Amy Klobuchar if she had ever blacked out rather than answering directly and plainly.
Asking questions
Poor witnesses will often respond to questions by asking a pointed question in return. This is a red flag. It is the Voltron of unreliable testimony, combining all of the qualities of a poor witness into one: anger, evasiveness, and defensiveness.
When watching parts of Kavanaughs testimony, you could feel the collective cringe of viewers.
Kavanaughs testimony is what losing at trial looks like. Especially when you compare it to the testimony of his accuser, Christine Blasey Ford, which was calm, responsive and to the point.
As a judge, Kavanaugh knows what a reliable witness looks like. He knows the dos and donts of giving evidence and how to assess the credibility of everyone who comes before his court. His performance was in stark contrast to his expertise. It was like watching a professional hockey player play a Stanley Cup final game with his stick upside down.
The credibility concerns with Kavanaughs testimony are important. But the concerns arising from his testimony go deeper.
It takes a special kind of person to be a judge. You must interpret and enforce the law no matter your personal views and especially when it conflicts with your personal values.
To be a judge, you need to ask yourself What does the law require me to do? rather than What do I want to happen? That is an enormously difficult exercise for anyone and should be reserved for a small percentage who have both the legal acumen and the strength of will to enforce and interpret the law in ways they may not ethically prefer. Judicial reasoning requires a special kind of non-partisanship.
In order to be a judge you need to enforce laws you do not agree with.
Like most lawyers, I have had friends ask me if I want to be a judge. My answer is no. Why? I could never put people in prison for committing crimes related to poverty or addiction. In fact, I would have a hard time putting most people in prison since touring one in law school and being shocked at what I witnessed. I would be crushed to have to rule against an injured person knowing it would mean they will owe an insurance company six figures in legal costs, lose their home, and go bankrupt. But the law requires these kinds of decisions by judges.
When watching Kavanaugh’s testimony, we need to ask ourselves: does he fit into the small percentage of people, the select few, who are up to the task of being a judge in the most powerful court in the most powerful country in the world?
Would he be able to control his emotions and have the strength of will to enforce the law apart from his personally-held beliefs? Or would he seek revenge against Democrats or the principles they believe are important as a member of a court that is already divided along political lines?
After his performance on Thursday, the answer should be clear.
Joseph Fearon is a personal injury lawyer with Preszler Law Firm LLP. Reasonable Doubt appears on www.nowtoronto.com on Mondays. Follow @JWCFearon on Twitter.
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