Trump’s Lawyer Did Him No Favors on Thursday

The judge was clearly peeved with Joe Tacopina’s cross-examination of E. Jean Carroll.

BY ROBERT KATZBERG
APRIL 28, 20237:30 AM

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.

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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 detains 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.

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.

So, it came as no surprise that Judge 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 mid-day 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, Judge 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.