By Dr. Ken Broda Bahm:
This past Tuesday, it was time for the 2016 campaign’s vice presidential debate pitting Republican Mike Pence against Democrat Tim Kaine. Broadly, the vice presidential comparison does not matter too much, because people tend to vote based on party and based on the person at the top — not so much for the vice president. In comparison to the clashes at the top of the ticket, the debates between their running mates typically receive much less attention. This season, that is probably more true than in most years, since both parties have standard-bearers who tend to suck all the media-oxygen out of the room: It is hard to be interesting and provocative when the comparison is Donald Trump or Hillary Clinton. So as Kaine and Pence took the stage, I wondered how it must feel to be in the shadows (relatively speaking) while still in a very high-pressure situation. Then it hit me: I’ll bet it feels a lot like being second chair in a trial! When you’re the attorney in second chair, you’re not the team leader, not conducting voir dire or giving the opening or the closing, and not taking any of the key witnesses — but still carrying a large and important burden.
I recently was part of a team that won a surprisingly big victory in court, and one thing that stands out from that trial is the role of an associate who was a tremendous second chair: He not only knew all the fine-grained details of dates and documents, and also participated on equal terms in the big-picture discussions, not afraid to challenge the lead attorney on matters of strategy or emphasis. Combining that experience with the veep debate, I thought I could highlight some lessons, with a little artistic license on the analogy. This post will share four key debate lessons for the litigation second chair.
Be on the Same Page
One criticism of Pence in the debate is that, while he did well, he seemed to be auditioning for his own future political role more than he seemed to be working for the candidate at the top of his ticket. He did tend to stick to more traditionally conservative talking points than Mr. Trump typically does, and six times Kaine challenged him to defend a position that Trump had taken and six times Pence seemed to avoid the issue.
The litigation second chair has a similar need to align with the team leader. A second chair role isn’t an audition for a future first chair role, it is a chance to help the lead attorney with everything that attorney needs. In the run up to trial, speak up on strategy and feel free to weigh in on the critical choices — that second pair of eyes is useful — but when the trial starts, make sure you are on the same page regarding your messages, priorities, and themes.
Know the Details
Both Kaine and Pence appeared to be well-prepared on the details, and Kaine in particular seemed to be quite adept at rattling off quick lists of facts and arguments designed to make it difficult for his opponent to respond to all of them. Of course, both candidates made a mix of true, mostly true, and false statements, and in the current partisan context, it is arguable whether either side’s base cares when the fact-checkers are against them.
But for the second chair role in trial, one thing is clear: Your role is to be correct. The first chair may be the leader on the big picture, but the second chair needs to be the master of the details: the documents, the motions, and the calendar. Whenever a witness says something that is inconsistent with another record, the second chair should be the one who knows it.
Know Your Responsibilities
One critical step in selecting either a running mate or a second chair attorney is a thorough discussion to make sure both sides know what to expect. For the vice presidential nominee, that means that you’re consistent on at least the most important issues, and comfortable with the idea of not upstaging the presidential candidate. For the second chair, it means knowing in advance exactly what your first chair is going to expect.
As Circuit Court Judge Robin Rosenberg writes in the ABA Journal, “An associate should prepare to serve as second chair at her first trial by first understanding the precise scope of her responsibilities at trial and, second, preparing to implement those responsibilities. Whether the responsibilities are bringing documents to trial, marking exhibits, preparing a witness for trial testimony, or presenting the opening statement, the associate should be organized, thorough, and treat each task as if the success of the case depended on it.”
Be Active, Not Passive
The person in the veep slot is sometimes used as a kind of attack dog, able to make aggressive critiques that would look “unpresidential” if they were coming from their running mate. While Trump seems to have rewritten those rules as they apply to himself, many have observed that Clinton still carries the burden of unequal gender expectations. Adapting to that, Tim Kaine seemed to be uncharacteristically aggressive during the debate, attacking in nearly every sentence and interrupting frequently.
That shift in style on Kaine’s part led most observers to conclude that the cool and reserved Pence had the upper hand, but the idea of being active not passive is still a very good idea, particularly for the second chair litigator. As attorney Myra Mormile writes on the American Bar Association site, “Do not assume that serving as a second chair gives you a one-day sightseeing pass. A litigation team can only be as strong as its weakest link. Do not let the chink in the armor be a passive second-chair.”
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Other Posts on Lessons from Political Speech:
- Be a Happy Warrior: 2012 Presidential Debate Series (Veep Edition)
- Take a Lesson from Political Campaigns: Going Negative Works (Partially)
- Know the Limits of Political Empathy
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Photo credits: Gage Skidmore and Edward Kimmel, Flickr Creative Commons, edited by author