For most Philadelphia trial lawyers, impeachment refers to the process of minimizing the effect of an adverse witnesses’ testimony. This can be done through cross-examination of the witness to expose inaccuracies in the testimony, to demonstrate its unreliability, to establish its competence, or to show a lack of credibility, among others. One of the most common forms of impeachment evidence is a prior inconsistent statement made by the witness. Prior inconsistent statements often take the form of sworn deposition testimony. In business litigation matters, it is common to see emails and text messages offered as prior inconsistent statements to impeach a witnesses’ testimony as well.
This week, the term impeachment has a very different meaning for Philadelphia trial lawyers. Philadelphia trial lawyers are among those defending the former President against impeachment charges in the United States Senate. The comments I have heard from friends, family, colleagues, and the media have been highly polarized, and their opinions of the quality of the “lawyering” are very strong. As a proud member of the legal profession and Philadelphia community for about 30 years, my reaction is to say that what we are observing is not “lawyering,” but rather, it is punditry. The rules established for trial lawyers in court, such as rules of evidence and civil procedure, do not apply in these impeachment hearings. If they did, you would see a very different process, with witnesses testifying from personal knowledge and subject to cross-examination, and with lawyers who are legally and ethically constrained to make arguments exclusively from the evidence admitted at the trial. To be honest, the “real” trial process is far less theatrical and can be pretty boring for observers (which is why very people actually go to court to watch trials).
The rules established by the Senate for this particular impeachment trial are very different. The rules permit the lawyers to opine on what the evidence is without calling witnesses. As a result, when I watch the proceedings, what I see more resembles a cable news opinion show than a trial.