Don’t Act like Judge Kavanaugh If You’re Defending Against Lawsuits and Accusations
“If you want to know what a man’s like, take a good look at how he treats his inferiors, not his equals.” – JK Rowling
Judge Kavanaugh was confirmed by the Senate to the United States Supreme Court on Saturday, October 6. The judge had been accused of sexual assault and gang rape by three women. Prior to Kavanaugh’s nomination, the Senate opened an FBI investigation and held a hearing into the allegations of one of the accusers, Dr. Christine Ford.
In his opening remarks during the hearing, Judge Kavanaugh accused the Democratic Party of attempting to obtain revenge for the Clintons. The remark caused many in the legal community, including sitting and former Supreme Court justices, to question whether Kavanaugh could be impartial. Kavanaugh often yelled and cried during the hearing. Republicans praised the emotions as passion and boldness in the face of rape allegations while Democrats condemned the performance as evidence of political partisanship and ill-temperament.
I will not comment on whether Dr. Ford and the other women who accused Kavanaugh of sexual assault and rape were truthful. Nor will I be commenting on whether Kavanaugh was the best choice for Supreme Court Justice or whether it was the right decision. However, I will urge average Americans who find themselves in lawsuits or in criminal trials not to behave like Judge Kavanaugh did during Dr. Ford’s hearing.
The Importance of Being a Credible Witness
I once took part in a deposition that was extraordinarily frustrating. The deposition was only scheduled for 10:30am to 12:30pm. Instead, we left at 5:30pm and the witness (and plaintiff) was scheduled to return for another session. Why did it take so long?
The witness was constantly yelling, interrupting the questioning lawyers, refusing to answer questions, making belligerent statements on the record, and otherwise being a nuisance. There were about 12 plaintiffs total in the case. The defendants settled with all the plaintiffs, except for the one who pounded and screamed during her deposition.
The attorneys for the defendants determined that she would be a terrible witness for herself and we fought through trial. We eventually settled right before trial began, but the screaming witness cost herself significant time and money by acting like a clown. She ended up with far less money and far more attorney fees than if she had been disciplined during her deposition.
From a strategic point of view, Judge Kavanaugh’s performance harmed his own chances for a promotion and the nation as a whole. Judge Kavanaugh could not control Dr. Ford’s testimony or how the American people would react to it. But he could control himself and he did not.
Kavanaugh is a fool if he believes obtaining higher office will protect him from uninvestigated allegations. Even if Kavanaugh has been confirmed now, the door is open for further investigations and challenges to his legitimacy.
Lawyers and politicians will demand his recusal in all manner of cases. Like the loudmouthed witness in my previous case, Kavanaugh might have what he wants, but he will find that his office will be worth less than if he had acted properly.
The Value of Respectful Conduct
I recently had a case where a woman was representing herself in a lawsuit. I asked the judge to dismiss the case because the lawsuit lacked any substance. The woman waited until the last minute and asked me to delay the hearing because she needed money to hire an attorney. I declined her request, the judge gave the dismissal I requested, and the woman sent me a thank you email.
Why did the woman thank the opposing lawyer who just had her lawsuit tossed out of court? I was forceful and held my ground, but I was always respectful to the pro per plaintiff. I treated her complaint seriously, but I reminded her that my duty to my client came first. I told the court what the plaintiff had communicated to me so that the judge could properly assess the case, but asked the judge to give my client greater consideration since I had actually followed proper procedure. I also reported to the plaintiff everything that was transpiring before and after the hearing. Even though the case was dismissed, both parties walked away feeling they had been treated fairly.
Defendants to a lawsuit should understand that it is possible to answer allegations without being rude or disrespectful. Sometimes the plaintiff is completely unreasonable, but more often than not the plaintiff does have a litigant complaint. If people feel their complaint is ignored or unfairly addressed, they will keep coming. Being respectful isn’t just about civil and polite; it is also a strategy to avoid more litigation.
Republicans in the Senate and the White House did themselves and Judge Kavanaugh no favors by dismissing protestors as paid activists or making light of attempted rape. Such behavior will almost certainly cause more lawsuits and investigations, not less. Listening to complaints and taking them seriously can minimize lawsuits, if not outright stop them. If Republicans want civility, they need to listen to people who don’t have power, not the people who are seeking more power.