Monday, December 11, 2023

A Very Bad Day For Civil Society

Fallout to testimony from presidents of Harvard and University of  Pennsylvania

Don't "over lawyer" your witness.  I learned that the hard way as an Army JAG years ago.  I don’t know about the other branches but if you want to be a military litigator, or just a litigator, go Army.  You study, train and practice every small detail of trial practice.  Still, the most painful lessons are learned on the fly. In actual trial, when something bad happens. Like when a witness you prepped, rehearsed, and prepared several times over freezes, explodes or disintegrates.  Its true, you really can over lawyer a witness.   You can drill her testimony with so much detail and script that the witness ends up stumbling over all that detailed script you drilled.  Or worse. If your witness is a type A overachiever all her life she won't stumble at all.  She will nail the script.  If she is accustomed to getting As, she will stick to the script long after the script is exposed as absurd.  The script drilled so deeply into the witness' brain that she doesn't perceive the absurdity because she's intent on articulating the string of words in your script.  Instead of just answering the question, in this case with a simple "yes." That must be what happened to the presidents from Harvard, Penn, and MIT last week.  They had to be the three smartest witnesses assembled in one place since Oppenheimer and colleagues before the House Un-American Activities Committee.  And yet . . . well, we all saw it.  I cringed because their good-enough-for-law-school answers – “it depends” -- told me right away they had been over lawyered.

And I'll tell you what.  That over lawyered testimony -- just a few minutes of 5 hours of testimony -- did incalculable damage to any effort towards preventing the hysterical shutting up of civil society.  It was a real setback.  Civil society got slaughtered.

darryll k. jones

Federal – Legislative | Permalink


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