内容摘要：Trial lawyers are performance artists, very much like stand-up comedians. As I explain in my book Th

Trial lawyers are performance artists, very much like stand-up comedians. As I explain in my book The Vanishing Trial, these seemingly disparate professions have much in common. First, it takes years to develop and hone the skills necessary to make people laugh or to effectively try cases. Second, the results of your work are immediate and clear—people either laugh at your jokes or not, and the emotional impact of a summation or cross-examination is felt immediately by all those present in a courtroom. Finally, in both professions, kudos are directly bestowed on you for success, and if you bomb, there is no one else to blame.

With that in mind, from the very outset of the E. Jean Carroll lawsuit against former President Donald Trump, I and many of my veteran New York courtroom colleagues have been focusing intently on the performance of someone most of us know: Trump lead lawyer Joe Tacopina. As I reported just before the trial began, given his “bulldog” persona both in and out of the courtroom, and the strict no-nonsense nature of Lewis Kaplan, the judge presiding over the trial, a potential clash was looming. During Tacopina’s pivotal cross-examination Thursday of Carroll, that most unwelcome reality for Trump’s defense has begun to emerge.

There are two compelling reasons a lawyer needs to avoid such clashes. First, when judges interrupt a cross-examination, it interferes with the flow of the lawyer’s questions. Second, whether it is the case or not, jurors will automatically assume that you are doing something you should not be doing if the neutral judge is intervening. Both of these outcomes seriously limit a lawyer’s effectiveness and credibility.

The cross of Carroll was inherently loaded with land mines. First, she is an elderly woman whose direct testimony over the past two days on direct seems to have been effective. Her lawyer Mike Ferrara not only took her and the jury through the painful details of the assault itself, but very effectively had her address potential weaknesses in her story and explain them directly. In what trial lawyers call “bringing it out on direct,” you remove any surprise when the issue is raised on cross, provide in advance your best explanation, and eliminate the belief that you were too afraid to address the subject. In Carroll’s direct examination, rational reasons were provided for a host of potential matters that might impeach her credibility, including the very long time interval between the event itself and when she made any public statements about it, her personal dislike of the former president, and her ability to make money out of the incident.

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Tacopina was also boxed in by the need to show that an allegation made by a credible person was—as he described it in his opening statement—“unbelievable.” While in an organized crime case, for instance, it may be necessary and appropriate to bludgeon a cooperating former mob member into admitting that at least part of his testimony is questionable, that tactic is hardly appropriate in this case. On Thursday, Tacopina’s repeated attempts to get Carroll to give in to this approach were unsuccessful.

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So, it came as no surprise that Kaplan periodically intervened in the cross-examination, calling Tacopina’s questions repetitive and argumentative. Judge Kaplan’s frustration seemed to increase as the day wore on. “We’ve been up and down the mountain. Move on.” New York Times reporters in the courtroom noticed that just before the midday break, the “typically attentive jury seemed to be losing steam.” Late in the afternoon, when Tacopina asked Carroll to provide details about the dress she wore the day of the alleged assault, Kaplan immediately interjected and excused the jury for the day. Not exactly the impression Team Trump wanted the jury to be left with on the way home.

We still have a long way to go. Tacopina may adjust his approach enough to avoid further clashes with the court—or things may get even worse. Despite the lack of progress seemingly made by Team Trump to date, the jury might still render a verdict in their favor, given the basic “he said, she said” nature of the case. What can be said at this juncture, however, is that things are not going well for the former president and that, as expected, the Carroll-Trump trial is great theater.

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• Donald Trump
• Law
• Rape
• Sexual Assault
• #MeToo
• Trump Trials