A Litigator Ponders the Election
A Litigator Ponders the Election
Published in the Daily Record the week of November 28, 2016
Clogged funnels. The election turned on clogged funnels.
The litigator in me grasped this long before the rest of me caught up. I would see interviews with Trump voters on the subject of Hillary Clinton and I knew I’d seen those faces before … but where? After the results came in, I remembered where: certain judges and juries whom, despite my best efforts, I couldn’t convince. (Sometimes it’s the other lawyer who’s gotten the look, let me hasten to add.)
What was common to the trials where I saw such faces? It only took a moment to place it. I saw them when I had a client whose credibility was up against a fatal flaw. Every litigator has confronted this situation a few times. Your client might be sympathetic. There might be all kinds of equities in the client’s favor. But somewhere in every such client’s tale there is at least one funnel, a place the finder of fact would have to pass through to reach the conclusion for which you advocate. However beautiful and reasonable whatever lies beyond that funnel might have been, if the finder of fact won’t follow you through it, your case stops dead. And the funnel is clogged.
The clog can be as simple as an explanation of behavior or motives that might be possible but just doesn’t seem likely. Sometimes it’s starker: an inconsistency that is never explained away, or, when the issue is sanctions against your client, an acknowledgment of wrongdoing that does not seem sincere enough. In the weeks leading up to the trial or hearing, you keep expecting that the client, properly though ethically prepared, will be able to explain the contradiction better, or will not only acknowledge an undeniable misdeed but do so in a way that demonstrates contrition, insight, and a determination to do better. If you were scripting it, you might find a way to knock that explanation or that contrite speech out of the park. But there are rules against actually putting words in your client’s mouth, and anyway, the clients who could best use being scripted this manner are always the least educable; even if you tried to train them, they would still tell the story their own inadequate way.
And then judges and juries give you that expression.
The Damn E-Mails
And after the votes were in, I realized that I’d been wincing through Hillary Clinton’s utterances all campaign long for just this reason. Lots of clogged funnels.
About the e-mails, there was the endless reveal of more and more and more commingled messages, more and more carefully parsed denials that the mix contained national secrets long after it seemed obvious that some of the messages had in fact contained secrets, erasures of messages, and, through all the discussion, including Clinton’s eight-hour day of testimony, no real act of contrition. To be sure, she regretted having set up her own rogue server. But she never said in my hearing anything like: “I’m so sorry. I allowed my inclination to control information to get the better of my judgment, and I did something incredibly stupid, and I compounded the stupidity by months of not really owning up to the worst aspects of the national security risks I was running – and by deleting messages I should not have deleted. Thank goodness nothing bad came of it. And I want the American people to know I will never, never do it again. I have learned my lesson.” To make a speech like that would have showed some insight, would have expressed a real change of heart, and might have persuaded some voters on the fence that she could have been trusted. It wasn’t happening.
Regarding American deindustrialization and the trade deals linked with it, she famously slipped at one point and told the truth, for instance, that coal wasn’t coming back. Instead of charging ahead and explaining how natural gas has a structural price advantage that coal cannot foreseeably overcome, and that solar either does or shortly will have a similar advantage, she waffled on this. Likewise, her “against it after she was for it” on the Trans Pacific Partnership never convinced; her tale of being converted when she saw the details was like the client story that just doesn’t seem plausible even though it’s not provably false. And the paid speeches for Wall Street, when withheld, were bad enough. When we found out that she’d told Wall Street that she didn’t necessarily believe in the kind of economic regulation of the financial industry the progressives in her party wanted, and that she was prepared to be two-faced about it – well, that probably explained the distrust of voters to whom financial abuses were second only to deindustrialization as the key issue.
What Mattered Most
Nor do I think it helped her with these voters that she was never candid about her marriage. Evidently, she had forgiven Bill’s indiscretions. Was it a cold-eyed deal for her political advantage, or did it come from the heart? Many voters suspected the former, a scenario not helpful to her credibility. And she would not go there; she flatly ignored a direct question on that score at the final debate. We’ve never heard that story of how Hillary forgave Bill. But, as the National Enquirer used to tell us, enquiring minds want to know.
It’s not always fair, in those trials where I’ve faced that look. My client may not be the only one with the clogged funnels. I can argue that the other side’s credibility is awful. It never seems to do much good. Here Clinton found herself up against a prodigious liar, and yet the trust deficit probably doomed her and did not affect him.
Let me hazard an uneducated guess why. Through all the lies and inconsistencies, Trump was at least consistent and credible about wanting to counteract deindustrialization, the thing his voters cared most about. Clinton was at her least trustworthy on that very issue. That, I suspect, is why she got the look, and the result that came with it – and he didn’t.
Copyright (c) Jack L. B. Gohn