As of this writing, there are half a dozen Presidential primary campaigns in full sail, and it appears that “authenticity” is the gale wind behind the large crowds and enthusiastic support for the grumpy, retro-cool Bernie Sanders and the unfiltered, potty-mouthed Donald Trump. Authenticity is so scarce in politics. It’s like a white truffle – redolent, irresistible and very hard to find.
In her April 19, 2015 New York Times column Maureen Dowd caustically wrote about Hillary Clinton’s lack of authenticity:
“The most famous woman on the planet has a confounding problem. She can’t figure out how to campaign as a woman. In 2008, Hillary Clinton took advice from two men – Bill Clinton and Mark Penn – and campaigned like a man. Worried about proving she could be commander in chief, Hillary scrubbed out the femininity, vulnerability and heart, in images and issues, that were anathema to Penn. Consciously tamping down the humor and warmth in Hillary and playing up the muscularity and bellicosity, her strategist modeled Hillary on Iron Lady Margaret Thatcher….
After losing Iowa and watching New Hampshire slip away to the tyro, Barack Obama, Hillary cracked. She misted up, talking to a group of voters in New Hampshire when a woman asked her how she kept going, while staying ‘upbeat and so wonderful.’ Her aides thought the flash of tears would be a disaster, that she would seem weak. But it was a triumph because she seemed real…”
She won the 2008 New Hampshire primary but was crushed by Sanders in the 2016 primary. Exit polls showed that Millennials (men and women) rejected Hillary in part because they value authenticity. Bernie has it and Hillary doesn’t. As one [woman] reporter observed:
“When he [Sanders] talks about two Americas, he sounds like an activist. She could give the same speech, but she sounds like a salesman.…. Bernie is a true believer. He’s local, where she’s global. He’s the artisan bacon selection at a hip Williamsburg microbrewery, and Hillary is a plate of loaded potato skins at the mall TGI Friday’s. He’s a cause; she’s a corporation. He’s one of a kind; she’s a chain. He’s a bumper sticker; she’s an infomercial.” S.E. Kupp
Voters and jurors prize authenticity because it’s a form of honesty that they don’t see or expect from politicians and trial lawyers. It’s natural to want to please an audience, and so we tailor our remarks and demeanor to reflect what we think the audience wants, but we sometimes try too hard and strike a false note. I have seen New York lawyers adopt a soft Southern drawl when trying cases in the South. I have seen an expert witness tie her long hair in a tight bun to look “more professional” when all she accomplished was to look severe and distant and cold. Jurors see through it all.
Love Among the Ruins
There are times when a lawyer desperately wants to change a client – perhaps to fit better with the theory of the case. In the British movie, Love Among the Ruins, Katherine Hepburn played a flamboyant grande dame and former actress who was sued by an ex-suitor (young enough to be her grandson) for breach of promise to marry. In modern terms it was a palimony case brought against an attractive “cougar.”
Laurence Olivier played Hepburn’s highly regarded barrister. His defense, his theory of the case, was her age; that the forty year age disparity made a marriage between them inconceivable, if not ludicrous. Olivier wanted to present her as an aging widow. As he prepared Hepburn for her trial testimony, he sternly instructed her to play down her appearance: “You will come dressed as befits your age in a simple bonnet and shawl and no more of those frills and feathers.”
He wanted the jury to see a meek and senescent grandmother. Hepburn refused to play the part and in so doing forced Olivier to change tactics and attack the plaintiff as unworthy of a lady as grand and exquisite as Hepburn. The new approach worked and she prevailed. Trying to present Hepburn as an undesirable old lady wouldn’t have worked. It wasn’t authentic. It wasn’t the real Hepburn and the jury would have seen it as deceptive.
The admonition we give witnesses to always tell the truth applies as well to their character and personality. Let your clients be true to themselves. Yes, the control freak in us hates anything that looks imperfect, especially with an important witness, but juries are forgiving. They value originality and authenticity more than they punish imperfection.
Lawyers are expected to be perfect, but it’s a mistake to expect perfection from witnesses. Frankly, most people don’t like perfection. They don’t connect emotionally with those who seem to have no flaws or weaknesses. They have a hard time trusting the “perfect person” because perfection isn’t real. Bernie is a grumpy, hard-nosed curmudgeon and he looks like a badly dressed grandfather who hasn’t combed his hair in ten years. He looks imperfect and vulnerable – just like us. We feel comfortable with him, we trust him, even if some of his socialist ideas are over the top.
Hillary’s challenge is that she acts like the lawyer she is. She is afraid to admit mistakes or show weakness. Except for that one moment in New Hampshire in 2008 when she “misted up and showed a flash of tears” her lawyerly instinct in the face of controversy, such as her email and server scandal, is to deny, denounce and delay. When she distances herself from the problem she distances herself from us. All she needed to say was: “Whoops, I didn’t know it was wrong. I’m so sorry for the mistake.” The scandal would have died right there. But she was afraid to look vulnerable or weak or imperfect. She was afraid to look human.