Why You Wait to Hear Both Sides

As a litigator, you learn early on how true the notion that “perception is reality” is. You build a case on evidence. But you win a case by weaving together a coherent, persuasive story that rests on that evidence. Which, truth be told, involves putting on a show for the jury.

The Ford-Kavanaugh hearing today wasn’t held in front of a jury – at least not in the legal/judicial sense. The “jury” in this case is the American public. Or, perhaps to put an exceedingly fine point on it, 3 or 4 moderate Senators who have been and will be hearing from the American public.

There’s a reason we defense lawyers highlight the importance of waiting to hear both sides/all the evidence early — and often — to the jury. Because if you only listen to one side, you’re overwhelmingly liable to find that side persuasive. But if you wait to hear both sides, you may find the other side more persuasive. Or, you may even find both sides persuasive and truly have to review and weigh each piece of evidence — which is what a fair and impartial jury should be doing.

Of course, neither the American public nor the Senate Judiciary Committee are fair and impartial jurors. If anything, at this point in time, they’re the polar opposite of that. Because we live in very partisan, polarized times. Everyone has a side and, anymore, it seems that never the twain shall meet. (And woe be to the person who attempts to bridge that gap, because they’re traitorous!)

Thus, chances are, anyone who tuned into today’s hearing already had a side — or, at least a predisposition. Either they believed it likely Christine Blasey Ford was sexually assaulted by Brett Kavanaugh in or around 1982 or the believed it likely that she was not, with the split falling predominantly upon partisan lines.

Straight up, I’ll acknowledge that I began the day predisposed to believe Kavanaugh. The timing, Dianne Feinstein’s highly dubious handling of the allegation, the circus atmosphere that has ensued, and the reputation that Judge Kavanaugh had built for himself in the 53 years preceding these past two weeks — all of it weighed in his favor. I wasn’t even convinced that Dr. Ford would appear. Although I also believed it possible that she was assaulted and traumatized as described but perhaps by someone other than Brett Kavanaugh.

I listened to Dr. Ford’s opening statement and found it very compelling. She seemed sincere and relatable. The kind of witness I would prefer a Plaintiff not to be and would consider a jury likely to believe and/or find sympathetic. As her testimony was drawn out (not by the speechifying Democratic Senators, but by the pleasant and patient, yet precise, Rachel Mitchell), I did note some inconsistencies. Some answers which raised more questions in my mind. But nothing I considered disqualifying.

As Dr. Ford’s testimony wrapped up, I thought Judge Kavanaugh’s appointment might be on life support. I almost didn’t want to watch the second half of the hearing.  I watched his interview with Martha McCallum earlier this week and found him to be a bit wooden and repetitive. (I’ll be the first to acknowledge that lawyers and judges aren’t likely to make the finest witnesses — too likely to overthink and over-parse everything.) I anticipated a similar appearance from him today.

And then, something amazing happened. Brett Kavanaugh delivered his opening remarks in an impassioned, thorough, credible, and emotional manner. So much so, that he not only had me tearing up, but I’m certain I saw tears welling up in Alyssa Milano’s eyes (conveniently and dramatically placed just over his right shoulder.) And that’s saying something, since she clearly was there with an agenda. I expected to be emotional listening to Dr. Ford’s statement. I didn’t expect to be so listening to Judge Kavanaugh’s. As a mother, and a daughter, and someone who’s invested half a lifetime in my career and reputation, it was painful — almost breathtaking — to watch him relive the hurt and frustration he’s experienced, both on his own behalf and behalf of his family.

Oh, I saw the “smart takes” on Twitter by those certain they know better than everyone. He was too emotional (they’d have accused him of being robotic had he not been). Even — gasp! — angry!  (How dare a man who’s been accused in the past two weeks of being a sexual assaulter, a flasher, an angry, abusive drunk, and — most recently — a punch-spiking gang-raper display righteous anger at such characterizations?!)

No, I think with his statement, Brett Kavanaugh struck the exact right note. His testimony which followed wasn’t perfect. Some of his repetitive reliance on his previously delivered talking points sounded exactly so. At times, he would have benefited from taking a breath and letting the adrenaline ratchet down. And he clearly wasn’t comfortable being pressed on calling for an FBI investigation (which struck me as reluctance to give in to the apparent delay tactics, further increasing the likelihood of his appointment being scuttled, rather than concern regarding the results.) Nevertheless, his appearance pulled me back to the point where I found both him and Christine Blasey Ford persuasive. Which requires me to review and weigh each piece of evidence. When I do that, I find myself believing Kavanaugh innocent of the accusations leveled against him by Ford (and the subsequent accusers.)

This isn’t to say I disbelieve that Ford was traumatized. (Not only by the assault she described but by the handling of her allegations since she first alerted Dianne Feinstein of them.)  But, no, I don’t believe it was by Kavanaugh. And I don’t believe the charges levied against him sufficiently credible to defeat his nomination and appointment to the Supreme Court.

The sad thing is that a grave disservice has been done to Dr. Ford, Judge Kavanaugh, their families and loved ones, and to this country. All in the name of politics.  The only bright spot one might find in all of this (aside from Lindsey Graham’s fiery fury) is the unifying effect it appears to have had on the right:

Now the case rests in the hands of the Senate. The 21 members of the Judiciary Committee, and the 100 members of the not-so-august body as a whole. I can’t predict what they’ll do. What I can predict is this: If they fail to confirm him after today, the GOP base will be furious. And November will be a disaster for Republicans.