Americans finally got to see the redacted report from Independent Counsel Robert Mueller last week. The report on Trump campaign issues relating to Russian election interference raised questions in a great variety of categories, one of those categories being the accuracy of Robert Barr’s summary of that report to Congress a few weeks earlier. While the Attorney General had, at that time, only set out to report the main conclusions, a number of critics have pointed to some substantial discrepancies between Mr. Barr’s summary and the actual report. To take one example, the summary suggested that the Independent Counsel had deferred on coming to a conclusion on the President’s obstruction of justice due to “difficult issues” which called for resolution by the Attorney General. In reality, the Independent Counsel’s report provided a great deal of evidence on obstruction, but declined to offer an opinion on the criminality of that behavior based primarily on the current Office of Legal Counsel opinion that a sitting President may not be indicted. Critics argue that in this situation, Robert Barr loses credibility for offering a summary that aimed to turn a default procedural win into more of a substantive win for the President.
Beyond the Attorney General, all litigators find themselves needing to offer a summary, and will find themselves judged on how that summary squares with the evidence once it arrives. In motions and oral arguments, voir dire, and opening statement, attorneys need to boil down the case and need to avoid some of the same pitfalls. You might think your evidence is fantastic, but if that leads you to over claim in your early summaries, then you can expect to lose some credibility when the evidence comes in. The ABA Journal asked some well-known lawyers about this risk a few years ago: “Don’t stretch the facts and get called out for the stretch later,” Reid Weingarten of Steptoe & Johnson said; and “Never overpromise. You’ll regret overstatements when, at closing, the other lawyer says, ‘Counsel promised you this, but he/she did not deliver,'” added Brendan Sullivan of Williams & Connolly. In this post, I’ll supplement with a few bits of additional advice on guarding yourself against an inaccurate summary.
Think Outside Yourself
Here’s the thing: Generally, you think your summary is perfectly accurate. But you’re an advocate, so there is also the adversarial bias to think of. Advocates, especially good ones, tend to emphasize the strengths of their own position. In the right measure, that can help you to persuade. But when it leads to exaggeration, or something perceived as exaggeration, then it rebounds. Ultimately, the question isn’t whether you think your summary is accurate. The question is whether a fair-minded but skeptical audience (aka, most of the time, a jury) will think you’re summarizing accurately.
On the Bad Stuff, Don’t Shy Away from It
The adversarial lens you are viewing the case through can also cause you to de-emphasize the weaknesses of your case. So, when summarizing what the case is likely to bring, don’t skimp on the bad stuff. If the picture ends up a lot worse for you after both sides have had their chance, then jurors will have less trust for you based on your initial summary. So, in addition to simply exposing the unfavorable information, consider embracing it. Leading with a message that focuses on both your weaknesses as well as how those weaknesses are answered is a way of “steering into the skid” and addressing your higher-risk jurors.
On the Good Stuff, If in Doubt, Leave It Out
Of course, opening statements and other summaries are also often given at a time at which you are not 100 percent sure of what comes in and what doesn’t. In that situation, you’ll be risking at least juror disapproval (and, at most, a mistrial) if you include some information in your summary that doesn’t end up making the cut. So if you’re not sure it is coming in, don’t risk a backlash from jury or judge by including it. If it does come in, it will still serve its purpose. The new information might even be more effective based on an effect found in the salesperson’s common “but wait, there’s more” appeal.