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Monday, January 16, 2006

Chewbacca Defense

Fans of South Park will recognize this term, used to identify a straw-man argument used in times of no defense. It is an argument which brings in useless information when the person making the defense has nothing to say in response.

I got to see this in practice today.

Let me set the scene for you:

Today I had to go to a binding arbitration as both a representative of my company AND as a witness, and testify as same. As I've never done this before, and, although I have been "trained" in court testimony, I was very nervous.

Arbitration differs from actual court litigation in several ways: there is a mediator who servs as judge and jury. It is held in a conference room, and while all witnesses are sworn, there is no court reporter.

Today the room was populated by 5 of us: clients of each side and the mediator/arbitrator on the end. The other end of the table was reserved for the various witnesses who would be called but did not have a right to remain throughout the proceedings.

I felt a little more nervous as a representative of my company...glad I could be there throughout, but a little terrified I would mess everything up. I tend to be too analytical and pull the rug out from under myself. And in this case, the rug was not just beneath my feet, but beneath my company. I was testifying for them.

My testimony went OK, but I forgot one of the answers to the prepared questions for our side...happily I was able to refer to transcribed statements for the answers, but it ended up not mattering, anyway. Upon cross-examination, which is kind of a wild card, I ended up being prepared. I ended up answering questions that actually weren't asked because I "read into" the opposing attorneys questions and in doing so, apparently appropriately established the scope of my knowledge and the introduction of a forensic expert. I was careful to state what I knew, phrase "my understanding of the forensic report is X"...etc. When I was asked a question I could not answer, I simply informed the other attorney that I was not trained for X assessment and directed him to ask his questions of the appropriate witness.

When I was done, I was sure I had just shot us in the foot.

Turned out to be OK.

WHEW! Thank you St. John Chrysostom! (Did I spell that right?)

I knew I was either off the hook or had completely blown our case when the other attorney said, "I have no more questions." as he took off his glasses and wiped his eyes. During my testimony, while being questioned by my attorney, the other attorney and his client nearly caused the arbitor to call a recess...I was sure I had really put a cog in our wheels.

In the end, both attorneys gave their closing arguments. The attorney for my company focused on the facts, summarizing them nicely. The defense...whoa...the defense!

It was weird. I actually found myself in a somewhat detached place. I could simply observe, take notes as needed as the arbitor had indicated he would allow rebuttal, and let my mind take it in. I found myself in an analytical place I am rarely able to freely reside...usually I need to be taking notes, checking a recorder...something.

But this time..I sat back and watched. This was for my own (company's) attorney to argue, and I was simply a client. I watched this attorney, a private practice defense attorney, wind up to make his pitch.

I considered his demeanor...he was kind of grandfatherly. I had noticed all along his ability to provide comfort to his witnesses--he had a very genial and accomodating manner, groomed, no doubt, throughout the years in his field. Yet he was direct, but not without a sense of the dramatic.

Personally, outside of testimony, I found him to be very likeable. Under his microscope of legal finesse, I found his bark stronger than his bite...or were his teeth razorblades?

So I observed this closing argument with much interest, and I'll admit...a bit of a cringe. At what point would my own testimony be shredded?

He wound up...and wound up...and attacked my industry in general (duly excluding "current company"), presented a summary of the character of his client, presented other illogical information, and then stated, "THIS does NOT make SENSE!"

After about the third time he stated "THIS does NOT make SENSE" while presenting information with NOTHING to do with the case at hand, I nearly burst out laughing at his "Chewbacca Defense".

I was actually taking notes here and there, and while I was tempted to write down "Chewbacca Defense", I did not for fear my attorney would see my note and lose his own focus.

So I simply sat with my hands in front of my face, struggling to maintain a poker face while I observed this emotional plea.

It was all fact. He was so busy defending something we had never called into question!

And I considered, "Do juries really fall for this?" And an even bigger question, "Will the arbitor fall for this? An experienced, logical, arbitor?"

I honestly expected Chewbacca to appear on a screen with the explanation that if we believe that Chewbacca lives on Endor, the arbitor must find for his client.

I could not wait for them to leave. The second the outer office door closed, I turned to my attorney and told him, "That was just a straw man! It was the Chewbacca Defense!"

He recognized the term, and agreed...and told me that this attorney is wildly successful in court.

So! Those of your going into prepared for the "Chewbacca Defense". Those of you on juries...don't fall for this. And if you see it, recognize it for what it impassioned plea upon your emotions because those who use it GOT NOTHIN' ELSE!

I hope the arbitor didn't fall for it...we'll learn the outcome this week.

I went to adoration en route home from this event to thank Jesus for helping me testify. I tend to be much better on paper than in speaking, especially when in a defensive postion.

I nearly lost my job little less than a year ago because I was struggling in presenting evidence in conference calls with majore head honchos. I HAD the evidence...I just couldn't present it. So today, I was terrified going in, but elated coming home.

The Lord is good. That's not to say that everything I think I know in this case was correct, but I can say with a clear conscience that I worked this case and presented it with integrity...and as this is an important duty of my job, I now feel vindicated. God has brought me through this fear, and my reward...was seeing the Chewbacca Defense.

Whether the mediator returns with a verdict on our side or the other doesn't matter..the fact that this "Defense" was used tells me that my work and my testimony were solid...that the attorney for our side did a great job!

Maybe I should get back to regular programming now....Praise God!

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