Disclaimer: This is not a political piece. It just so happens that our former President conducts himself so poorly, regardless of the setting, that it provides great fodder for an article concerning one of the most important issues in every trial: credibility.
Prior to the civil fraud trial brought by New York Attorney General Letitia James, Donald Trump’s credibility had already taken a big hit in the two lawsuits brought by E. Jean Carroll (“Carroll”), claiming sexual assault. Despite President Trump’s claim that he did not know Carroll, the jury in the first lawsuit awarded Carroll $5 million in 2023, and the jury in the second suit returned an $83 million verdict against him after deliberating for only a few hours. But that did not deter him from engaging in similar antics in the New York Attorney General’s lawsuit, a state court bench trial before the Hon. Arthur F. Engoron that resulted in a judgment in excess of $350 million.
Putting aside the soundness of President Trump’s decision to constantly attack Judge Engoron’s alleged bias against him—or maybe Trump just could not control himself—when, in the end, Judge Engoron was the fact-finder, Judge Engoron did not take the bait. Instead, he found the President to be a pathological fraudster who refused to admit making any errors when valuing his assets for tax purposes. Specifically, as to President Trump’s credibility, the Court noted that his refusal to answer the questions directly, or in some cases, at all, severely compromises his credibility.
The Court also found that defendants showed no contrition and, therefore, President Trump was likely to repeat his fraudulent behavior, resulting in the Court appointing two independent monitors for oversight of the Trump Companies, one being an Independent Director of Compliance.
Judge Engoron also made another, separate, and important credibility finding to support the $354.9 million fine and equitable relief imposed on February 16, 2024. The Judge found the testimony of Plaintiff’s witness, the infamous Michael Cohen, credible, proving that one can re-establish one’s credibility despite previously having been convicted of perjury. Judge Engoron held that:
“Although the animosity between the witness (Cohen) and the defendant is palpable, providing Cohen with an incentive to lie, the Court found his testimony credible, based on the relaxed manner in which he testified, the general plausibility of his statements and, most importantly, the way his testimony was corroborated by the trial evidence.”
Just about every trial involves hotly disputed material facts, or the case would have been decided on summary judgment. The takeaway, therefore, is to not only prepare your witnesses concerning the facts and the evidence supporting and challenging a litigant’s claims but to spend as much time explaining how best to at least come across as being a credible witness.
The witness should look into the eyes of the judge or jury when answering questions. The witness should not argue with the other attorney. The witness should directly answer the questions being posed and not go off on tangents, knowing that his or her attorney can bring out these other facts on redirect examination if necessary. The witness should pause before answering a question and look up while thinking how to respond. Studies have shown that people are more likely to be found credible with their eyes looking up toward the ceiling while trying to recall information than if they look down at the floor before responding. Other body language is also important. Facing a jury with a relaxed demeanor is far better than sitting with your arms crossed.
Finally, being courteous to the judge, his or her staff, and to the jury is important. This includes standing when they enter and leave the courtroom. While it does not necessarily impact credibility, as my mother used to say, “[i]t can’t hurt”.
For more information, please contact Steven I. Adler at (973) 243-7930 or via email at sadler@mblawfirm.com