In Praise of Rachel Mitchell

Many people , including Alan Dershowitz, have heavily criticized Rachel Mitchell for failing to aggressively cross-examine Dr. Ford at the Senate hearing.  As a former litigator, I believed during the hearing, and still maintain, that she took the right approach.  That said, I do not know what she was tasked with: if she was told to do what she did or was asked to rip Dr. Ford a new one (I highly doubt that); if the senators were just playing the entire thing by ear; or if they planned to have her question Kavanaugh and then yield to committee members.

I admit, at times, like most of you, I just wanted her to go for the jugular, but Mitchell's cooler head wisely prevailed.

What she did and did beautifully despite the ridiculousness of the five-minute ping-ponging was (1) lay a foundation; (2) elicit admissions from Dr. Ford; (3) tack back and forth in time and subject matter; and (4) display a calm demeanor, which was nothing less than I would expect from a seasoned sex crimes trial attorney. 

Let me add that it became glaringly obvious after the second five-minute round that they should have canned the five-minute rule and collectively yielded their time to Mitchell in 30- or 60-minute increments, facilitating the opportunity to dig deeper and calmly extract even more discrepancies, inconsistencies, and tenuous memories from the oddly bespectacled Surf Rat. 

Laying the foundation for the facts of the case is beneficial to everyone.  You establish timelines and demeanor, set the scenery, etc., and put the witness at ease.  It is Mitchell's job to make the accuser-witness feel comfortable answering questions so she ultimately divulges information.  Had Rachel come across as The Grand Inquisitor, Ford would have immediately gone on the defensive and clammed up, and her attorneys would have objected to every question and advised her with respect to every answer.  Ford's responses would be "I do not recall," "I have no knowledge," and "I have been advised by my counsel to..."  The entire process would have been for naught. 

Tacking back and forth in time and subject is an art form – one that is hard to master and takes a great deal of discipline, especially in our immediate gratification culture, where we have been raised on Perry Mason moments and expect trials to unfurl like the one in A Few Good Men.  It is so tempting to facilitate a line of questioning, extract a few admissions, and then bam!  Nail the witness for all of the lies and inconsistencies in her testimony, evidence, prior statements, depositions, etc.  When you tack back and forth, you keep the witness on his toes as to what is coming next.  If someone is lying or unsure, the prevarications and gaps will more likely be exposed this way, rather than if you sail along an expected trajectory.

Now, it is true: this wasn't a criminal proceeding, and if she wanted to, Mitchell could have brutally cross-examined Ford.  And she did confront Ford at the end with respect to the most compelling bit of evidence – the fact that her three named witnesses not only couldn't corroborate her story, but outright refuted it.  Moreover, while Mitchell did not have the opportunity for any kind of closing statement or summary in which she could have tied it all together, didn't most of us catch on anyhow?  We heard Ford say in her own words things that didn't add up – she was impacted in college, but what about the remaining high-school years?  She heard the boys talking at the bottom of the stairs, but earlier, she said they were ping-ponging down.  She couldn't remember events related to this proceeding a few weeks ago, but we are supposed to trust her memories of 35-plus years ago.  And so forth and so on.  For a complete summary of Rachel Mitchell's expert conclusions, I highly recommend you read her report

All of that said, I am glad they discontinued her questioning and allowed the senators to do what they do best – filibuster, speechify, and not hold back in recriminations, attacks, and support.  Unfortunately, Brett Kavanaugh stumbled with many of the questions, most likely from sheer emotional exhaustion and the inability to cope with the line of ridiculous questioning about Rachel Alumnus, flatulence, drinking, and high school antics.  But he should have been prepared for those questions, and we know he prepared – he told us that was why he didn't watch Ford's testimony.

Hopefully, the vote will take place as scheduled, and the judge will become a justice.  While Mitchell will be a footnote in the history books, Justice Kavanaugh will leave his mark on U.S. jurisprudence, and the blemishes that will endure from  this ordeal will fade with time.

Many people , including Alan Dershowitz, have heavily criticized Rachel Mitchell for failing to aggressively cross-examine Dr. Ford at the Senate hearing.  As a former litigator, I believed during the hearing, and still maintain, that she took the right approach.  That said, I do not know what she was tasked with: if she was told to do what she did or was asked to rip Dr. Ford a new one (I highly doubt that); if the senators were just playing the entire thing by ear; or if they planned to have her question Kavanaugh and then yield to committee members.

I admit, at times, like most of you, I just wanted her to go for the jugular, but Mitchell's cooler head wisely prevailed.

What she did and did beautifully despite the ridiculousness of the five-minute ping-ponging was (1) lay a foundation; (2) elicit admissions from Dr. Ford; (3) tack back and forth in time and subject matter; and (4) display a calm demeanor, which was nothing less than I would expect from a seasoned sex crimes trial attorney. 

Let me add that it became glaringly obvious after the second five-minute round that they should have canned the five-minute rule and collectively yielded their time to Mitchell in 30- or 60-minute increments, facilitating the opportunity to dig deeper and calmly extract even more discrepancies, inconsistencies, and tenuous memories from the oddly bespectacled Surf Rat. 

Laying the foundation for the facts of the case is beneficial to everyone.  You establish timelines and demeanor, set the scenery, etc., and put the witness at ease.  It is Mitchell's job to make the accuser-witness feel comfortable answering questions so she ultimately divulges information.  Had Rachel come across as The Grand Inquisitor, Ford would have immediately gone on the defensive and clammed up, and her attorneys would have objected to every question and advised her with respect to every answer.  Ford's responses would be "I do not recall," "I have no knowledge," and "I have been advised by my counsel to..."  The entire process would have been for naught. 

Tacking back and forth in time and subject is an art form – one that is hard to master and takes a great deal of discipline, especially in our immediate gratification culture, where we have been raised on Perry Mason moments and expect trials to unfurl like the one in A Few Good Men.  It is so tempting to facilitate a line of questioning, extract a few admissions, and then bam!  Nail the witness for all of the lies and inconsistencies in her testimony, evidence, prior statements, depositions, etc.  When you tack back and forth, you keep the witness on his toes as to what is coming next.  If someone is lying or unsure, the prevarications and gaps will more likely be exposed this way, rather than if you sail along an expected trajectory.

Now, it is true: this wasn't a criminal proceeding, and if she wanted to, Mitchell could have brutally cross-examined Ford.  And she did confront Ford at the end with respect to the most compelling bit of evidence – the fact that her three named witnesses not only couldn't corroborate her story, but outright refuted it.  Moreover, while Mitchell did not have the opportunity for any kind of closing statement or summary in which she could have tied it all together, didn't most of us catch on anyhow?  We heard Ford say in her own words things that didn't add up – she was impacted in college, but what about the remaining high-school years?  She heard the boys talking at the bottom of the stairs, but earlier, she said they were ping-ponging down.  She couldn't remember events related to this proceeding a few weeks ago, but we are supposed to trust her memories of 35-plus years ago.  And so forth and so on.  For a complete summary of Rachel Mitchell's expert conclusions, I highly recommend you read her report

All of that said, I am glad they discontinued her questioning and allowed the senators to do what they do best – filibuster, speechify, and not hold back in recriminations, attacks, and support.  Unfortunately, Brett Kavanaugh stumbled with many of the questions, most likely from sheer emotional exhaustion and the inability to cope with the line of ridiculous questioning about Rachel Alumnus, flatulence, drinking, and high school antics.  But he should have been prepared for those questions, and we know he prepared – he told us that was why he didn't watch Ford's testimony.

Hopefully, the vote will take place as scheduled, and the judge will become a justice.  While Mitchell will be a footnote in the history books, Justice Kavanaugh will leave his mark on U.S. jurisprudence, and the blemishes that will endure from  this ordeal will fade with time.