Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

What started with an anonymous whistleblower report regarding President Trump’s pressure on the government of Ukraine to investigate his political opponents has blossomed into a parade of witnesses testifying in a soon-to-be public House impeachment inquiry. So, who was this whistleblower? A lot of people really want to know. Kentucky Senator Rand Paul said at the President’s rally earlier this week, “I say tonight to the media, do your job and print his name!” That is a sentiment that seems dramatically at odds with laws protecting federal whistleblowers, and it is also, arguably, a transparent attempt to provide the President’s defenders with a target to demonize. And as sworn testimony continues to corroborate that original whistleblower’s report, it raises the question of why we would care about that person’s identity. As a tweet by Representative Eric Swellwell notes by analogy, “First responders showed up and saw smoke, flames and Donald Trump holding a gas can with matches. Does it matter who pulled the fire alarm?”

Of course, it is different in court and the answer is, “It might.” In most cases, a whistleblower can be admissible or can be anonymous, but can’t be both. In the impeachment inquiry, however, those saying that the whistleblower’s identity does not logically or legally matter, might be missing at least part of the point, and missing it in a way that applies to all whistleblower situations. The identity and credibility of the whistleblower still matters because it is part of the story. Whether we are about to hear who the whistleblower is (and, in recent days, several sources have at least claimed to be revealing the name of that whistleblower), or whether it becomes a mystery stretching over decades, like the identity of Watergate’s “Deepthroat,” it is important to account for the reason why it matters. Credibility matters not just based on logical or legal relevance to the claim; credibility matters simply because it is part of the story. And people, in or out of court, don’t do well with an incomplete picture. In this post, I’ll share three broad tips relating to whistleblower credibility in the more mundane matters outside of impeachment.

For any setting where the whistleblower is known and testifying, here are three overarching principles for making credibility part of the story.

Address the How and the What

The logical focus of a whistleblower’s testimony is the content: The what of what you know. But there is also a how that needs to be explained: How did you come to know what you know? What led you to that information? What was the process, and was it appropriate? How did you check on your own or with others to make sure you were right? All of that contributes to the story and the context of the testimony, not just the punchline.

Address the Higher Loyalty

The motive matters. One of the reasons that the President’s defenders are hellbent on unmasking the Ukraine whistleblower, for instance, is to confirm the narrative that they’ve already been sharing: That this person is a die-hard ‘Never Trumper’ trying to bring the administration down. Now, one might respond, “If the information is true, then who cares?” But I’ve long noted that, even on cases where motive plays no formal role, to the jurors or mock jurors evaluating a case, motive always matters. Indeed, it is one of the more common areas of focus during deliberations. If the whistleblower is a partisan, to many at least, that will taint the entire process. Even if the information is otherwise corroborated, that would just put a question mark over the corroboration.

Consistency Counts

Often the question asked of someone coming forward is, “Why now?” Maybe what the whistle is being blown on is something that’s been ongoing for some time. So why didn’t the whistleblower step forward before? If it wasn’t a situation of someone suddenly coming into possession of information (as seems to be the case with the Ukraine whistleblower), then part of the whistleblower’s credibility story needs to address the turning point, or the proverbial “Road to Damascus” conversion. More broadly, the whistleblower needs to show that the act of stepping forward for the truth comports with the rest of that person’s character.

The main point for whistleblowers and those relying on their testimony to keep in mind is this: There isn’t just a straight line of relevance that connects facts to conclusions. Rather, there is an overarching story that includes the character and credibility of all the players.

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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now

 

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Other Posts on Whistleblowers:

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