Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
It was another big moment yesterday as Michael Cohen, President Trump’s former personal lawyer, testified publicly before the House Oversight Committee. Widely seen as an opening act prior to Special Counsel Robert Mueller’s report on Russian interference in the election, Cohen’s testimony focused on continuing business in Russia during the campaign, on the pre-election “hush money” payments to former mistresses of Mr. Trump, as well as various other allegations of legal and ethical failings. Several Members of Congress, including the Committee Chair, Elijah Cummings, noted the central problem: Given Mr. Cohen’s past dishonesty, and indeed his conviction for making false statements to Congress, why should we believe him now?
Mr. Cummings noted that he faced this problem of a lying witness as a trial lawyer many times, and it is likely that many readers have practical experience in that as well. Prosecutors, for example, don’t have the luxury of working only with honest and squeaky-clean witnesses. Civil litigators can have their own challenges as well. A physician might look up a patient’s electronic files right after getting served, and then deny that he reviewed anything during his deposition. Or a business executive might have to admit to knowingly filing false reports. Or perhaps, more prosaically, a common witness might have to admit that they just shaded or omitted a detail in prior testimony in the naive hope that it will help their case. In Cohen’s testimony, the partisan divide was stark: While Republicans heaped condemnation based on past dishonesty, Democrats tried to thread the needle and show that, despite Mr. Cohen’s past actions — or perhaps because of them — he remains an important and, in some situations, at least a credible witness. The rest of this post shares a few thoughts on how that rehabilitation can be accomplished.
1. Tell Your Conversion Story
If those receiving the testimony are expected to believe that the witness lied then, but is telling the truth now, then part of the story has to be that something changed. The rehabilitated witness needs some kind of credible “Road to Damascus” story that caused them to reconsider and come clean. One way of marking that conversion is pointing to a realization of a kind of transcendent loyalty. In Cohen’s case, for example, he is saying that his loyalty to his family, to the American people, and the truth, has to come before his loyalty to Mr. Trump. Still, we have to wonder, why didn’t he have that higher loyalty before? Something must have changed.
In Mr. Cohen’s case, for example, it matters that Mr. Cohen was discarded by the Trumps after prosecutors raided his offices. While many to most of his past lies were in service of Mr. Trump, now that there’s been a falling-out between the two, he is stepping forward ostensibly to correct past statements. So, when the President’s supporters just call him a “proven liar,” they are walking swiftly past that distinction.
At the same time, those relying on Mr. Cohen’s testimony need to show that something changed other than his circumstances. Congressman Jim Cooper, for example, asked Mr. Cohen what the “breaking point” was regarding his loyalty to the President. Mr. Cohen responded concretely, and mentioned several events including Trump’s joint press conference in Helsinki as well as the comments about white supremacists marching in Charlottesville.
2. Emphasize the Corroboration
Michael Cohen began his statement by noting that he understands those who would doubt him based on his past false statements, and further noted that is why he spent weeks pouring over documents, and why he brought the receipts. For example, on the point of Trump’s tendency to inflate or deflate his assets depending on his need, Mr. Cohen brought three years of Trump’s financial statements. That is an essential support, allowing the message to be that it isn’t about simply taking what the witness says on faith. Lawyers who are practically required to work with less reliable witnesses know that no witness stands alone, but instead they reinforce each other and gain (or lose) credibility in the context of the surrounding documents. In particular, a witness like Michael Cohen is useful not so much as an unerring source of truth, but as a useful map to where the real evidence is. As a personal attorney, he can point to the names, dates, places, and dollars that serve to connect the dots.
3. Include All Four Parts of the Apology
Past dishonesty is a breach of the foundation of trust that needs to underlie a good witness. If one has been dishonest in the past, it is not enough to simply start testifying honestly going forward. The past breach needs to be addressed. In our experience, the apology that should accompany that redress contains four parts:
The first step of an apology is the sorry or regret. “I regret the day I said yes to Mr. Trump,” Mr. Cohen shared in his opening statement, repeating several times how “ashamed” he is of his past actions and past work for Donald Trump.
Taking responsibility means accepting the fault and the blame of past false statements without trying to deflect or diminish them by blaming the circumstances, the questioner, or your own confusion. Taking full responsibility without adding a modifier is the clearest way to neutralize the issue.
It can seem disingenuous to just say “sorry” and move on, as if what you’re trying to avoid is just the blowback. A complete apology should include an element of repair. Consistent with that, Michael Cohen frames his current testimony as an attempt to rectify past false statements and illegal acts.
The repair might fix the past breach, but the other question is, “How are you going to change going forward?” This is where it is important that Michael Cohen is talking about his “Path of redemption”: The claim is that the current testimony marks a turning point for the remainder of his life.
Of course, none of this indicates that Michael Cohen is telling the truth now, or that he will be believed by Members of Congress, prosecutors, or the American people. But the challenge he faces — how to rehabilitate himself after perjury — is a difficult challenge, but also one that witnesses often need to address, and can address.
Other Posts on Witness Credibility:
- Test the Credibility of Your Turncoat Witness
- Instruct the Jury Accurately on Witness Credibility
- Don’t Corrupt Your Credibility
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