April 14, 2006
Was Skilling On the Witness Stand Too Long?
The direct testimony of former Enron CEO Jeffrey Skilling ended after four days, with him bristling at the government's efforts to "rewrite history" and his attorney asking him if he needed a break to calm down. Whether that outburst was spontaneous or pure theatrics, the testimony was the longest direct examination of a witness so far during the trial, approximately twice that of two of the government's key witnesses, Ben Glisan and Andy Fastow. Judgments about the effectiveness of Skilling's testimony are premature at this point because he has not be subjected to cross-examination yet, and so the fact that his direct examination went as planned should not be a surprise given the time spent preparing for it. While Skilling has to respond to the government's entire case when prosecution witnesses can testify about smaller parts of it, one question that keeps popping into my mind is whether Skilling spent too much time on the witness stand. Long ago, when I underwent the Department of Justice's trial advocacy training, one adage that stuck with me was the refrain of an instructor: "Get 'em on and get 'em off -- don't dilly-dally!" Have the witness testify to the key facts and don't spend too much time asking questions because the more the witness says the more material there is for cross-examination. There's no way to know whether Skilling said "too much" when he testified, but I wonder how much the jury will retain from his direct testimony and whether he put himself in a position of being impeached based on his depth of knowledge about some topics and lack of knowledge about others. Should counsel have gotten Skilling on-and-off more quickly? The defense theory requires going against the grain of accepted wisdom about Enron's business and demise, so it may be that Skilling has to fill in a lot of detail, but he said an awful lot that likely will be fodder for cross-examination. Just a thought. (ph)
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