The Senate Impeachment Trial:
Apolitical Observations by a Trial Consultant


 

“Why, recourse was had to assassination in which he was not only deprived of his life but of the opportunity of vindicating his character. It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”

Dr. Benjamin Franklin
July 20th 1787


While watching the opening arguments made by House managers and White House attorneys, any trial consultant worth their salt can feel the compulsion to dissect these proceedings growing stronger by the hour. As one such consultant, I am fully aware that I risk wading into a political argument on social media that, quite frankly, I have no interest in. Let’s not “pick a side” today – that is not what this article is about.

Instead, let’s consider the invaluable lessons provided by the events transpiring on Capitol Hill for any lawyer or speaker. It is in the vein of teachable moments that the senate trial comes to mind. Obviously, a Senate impeachment trial is very different from court, but some of the lessons here transfer to any court appearance or speaking engagement:

Time Limits:

This week’s Senate hearing is a prime example as to why judges put a time limit on opening arguments. Twenty-four hours per side to give opening statements is enough to have plenty of Americans falling asleep in front of their TVs, and at least a few senators. No person, no matter how disciplined their attention span, can handle sitting for hours on end (with no coffee!?) listening to someone bang on until the wee hours of the morning…particularly when the topic is about as engaging as Thanksgiving dinner debates with your one awkward uncle.

After the first two hours of both openings, I wish the judges I’ve presented in front of were there to say, “move along gentlemen, that horse is sufficiently beaten.” Unfortunately for us, Justice Roberts, and every member of the Senate, there isn’t a politician alive that shuns the limelight. Each, given the opportunity, will talk until they’ve exhausted every adjective that may (even loosely) describe their argument.

Visual Demonstratives:

House managers used limited demonstratives, which I found myself often fighting the urge to “fix”: to make them cleaner, neater, less monochromatic, more thoughtful, or more relevant. Though it was a valiant try by the staffers on the hill, they lack the experience, eye, and skill employed by experts in visual communication to develop graphics that bolster arguments, and the results are obvious even to a layman. By contrast, the White House lawyers clearly had a professional working with them to craft their message and develop clear, concise visuals that reinforced their arguments instead of distracting from the message. (A side note to the consulting team in question: Well done.) Not everyone on the White House team made use of demonstratives, essentially talking over the aids rather than engaging them; demonstratives can be well made and still ineffective if not incorporated properly. To find a good use of the team’s demonstratives, one need look no further than Mike Purpura, whose time made obvious that he worked closely with consultants on his presentation preparation. It was clear that he was cognizant of the fact that oral and visual evidence simultaneously is an effective use of demonstratives to reinforce key points. This formula resulted in a highly-polished, effective, and well-timed delivery.

Repetition v. Reinforcement:

There is a fine line between repetition to reinforce a message and repeating things enough that you annoy your audience. You can see it in their faces: the heavy eyelids, the doodles in notepads, and fidget spinning. While being allowed coffee would be helpful for Senators, regurgitating what the last person said five times over – only with new and fancy adjectives – helps no one, including your own arguments.

Just the facts, Jack:

When preparing lawyers and witnesses for trial, I often remind them to stick to the facts and to keep emotions in check. Cases are not won or lost because the representing lawyer or party involved is emotional, whether that be in a bench trial, arbitration, or jury trial. Crafting arguments around the facts, and the pattern that emerges as a result, is the most persuasive way to be convincing. Unfortunately, and despite an otherwise well-delivered and persuasive oral argument at opening by the House managers, Representative Schiff made a mistake by referring to an unsubstantiated article by CBS regarding President Trump threatening members of the Senate (via proxy) – the very same Senate charged with jury duty in this trial – should they vote to convict. Rep. Schiff immediately followed this accusation with “Now, I don’t know if that’s true.” One could argue that this is a folksy, likeable humbleness, but trial is not the place for friendly neighbors, rather knowledgeable experts. Here’s hoping that such a misstep will not alienate Senators or cloud their judgement. That said, when the stakes are this high, it was a significant risk on the part of House managers to make an unnecessary point that had little chance of bolstering their arguments.

Key takeaway: If you don’t know something is a fact, it is a gamble to include it and you needlessly expose your case to potential backlash if proven false.

Witnesses:

Obviously, a trial in the Senate on impeaching the President of the United States is a very different proposition than civil or criminal court in practically every facet. In an impeachment trial the Senate determines if there will be testimony, and who will testify before them, by a simple majority vote. In both President Clinton’s and President Johnson’s impeachment trials before the Senate, indeed, witnesses did testify, though Clinton’s trial included only video depositions instead of live witnesses. In this particular case, the House managers were extremely persuasive in their argument for additional witnesses in addition to having precedent to bolster their position. While true that live witnesses can be unpredictable, hearing from relevant witnesses with direct knowledge of facts in dispute has been proven extremely important for jurors to make a fully informed decision. There are several key individuals discussed by both House managers and the White House counsel who either are directly involved or had direct knowledge of the events in this controversy but were not questioned or deposed – for myriad reasons – during the House impeachment investigation. These witnesses can potentially provide additional facts and context to aid the Senate in making the difficult decision to acquit or convict, and there is little reason to disregard their knowledge of the events in good faith.

It will be interesting to watch as the remainder of the impeachment trial unfolds. It could take the remainder of this week or months to determine the outcome. No matter what the decision (or how many trial consultants are set to grumbling about how it could have been done better), history is being made and we all have a front row seat.

 


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