October 8, 2012 Authenticity

“To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man.” William Shakespeare, Hamlet.

My last post on the presidential debate focused on the disastrous, lackluster, non-performance by Obama, but now I want to dissect the performance of Mitt Romney who has been declared the clear winner of the debate. In my opinion Romney will advance only in the short term because his performance, albeit energetic and captivating, lacked authenticity. Authenticity is equally important to lawyers as to politicians.

There’s an old joke about trial lawyers: their most important attribute is sincerity; once you can fake that you have it made. Substitute authenticity for sincerity and you have Mitt Romney at the presidential debate. He won by becoming the “New Romney.” By being someone he is not. By changing his story and compromising his principles. Does that work? Certainly in the short run, but it leads to mistrust of his message.

There is a lesson in Mitt Romney’s apparent successful debate performance for us trial lawyers. This is the same problem that we face. The jury is astute. There are twelve of them watching your every move, listening closely to what you say, even sensing your body language. They are watching for clues as to what you actually believe. They are looking for a shortcut to their verdict. If you don’t believe in your case then neither will they. Do you sound sincere or are you just mouthing cliches without any real belief in them. They want to know if you are authentic.

It is easy to fall into the trap of seeming to talk out of both sides of your mouth. In a trial there are many moving parts and it is a mistake to treat each one separately rather than as a whole. Creating a theory of the case and following it throughout all the trial is designed to keep you consistent.

The theory of the case organizes all the facts, reasons and arguments in a central theory which the lawyer follows in every step of the trial. A trial is a series of small scenes. In voir dire the lawyer discusses the legal and factual issues with the venire. In opening argument the lawyer directly presents the facts and inferences. In cross examination the lawyer asks questions which are consistent with the theory he has established. He can’t ask questions which seem inconsistent with his opening argument. In his direct case he elicits answers which further his case theory. And at the end, his final argument sums up the facts and weaves them into a narrative of the case theory.

In each of these scenes the lawyer has to be consistent. The theory can’t change. There can’t be mixed messages. There is only one truth.

Being inconsistent makes you inauthentic whether one is a trial lawyer or a politician. In a politician being authentic is being genuine, being true to who you are and honoring who you are. It means being consistent with the values, beliefs and principles you say you hold, less than that is hypocritical. I know people who are not interested in the public good but rather their own agenda. They are honest and don’t pretend to be something other than who they were.

Over time we can tell when someone is focused on their own best interests rather than ours. We can tell when they try to pull the wool over our eyes with a slick sales pitch. We can tell when they are not authentic.

Nathaniel Hawthorne spoke to the multiple Mitt problem: “No one man can, for any considerable time, wear one face to himself and another to the multitude, without finally getting bewildered as to which is the true one.”

In a trial, when our opponent has been inconsistent, or a witness has changed their story, or has been caught in a lie, one of the favorite stories we tell is the cockroach in the stew. Usually the opponent argues the lie or inconsistency isn’t important and the jury can safely rely on the rest of the evidence. We tell the jury: Imagine you are eating a stew and you dig in with your spoon and a dead cockroach comes up on it. What do you do? Do you just cast the roach aside and dig heartily back into the stew? Or do you throw out the entire stew?